India Legal: Issue 31 August 2014

NDIA EGAL
L
STORIES THAT COUNT
August 31, 2014 `100
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Who shot the collegium? Sex and the judge
wwwindi
Phoolan: Killers
comeuppance
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Should we
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1
VER since 1986, when green felling was
banned in Himachal Pradesh in a desperate
bid to preserve the forests and ecology of
Indias hill state, home to the Dalai Lama
and to the departed Sikh chronicler
Khushwant Singh, birthplace of Ruskin Bond and
muse to some of Kiplings finest verse, people who
visit the state tut-tut sanctimoniously about the
environmental havoc that continues to take a ruthless
toll of what are loosely called the Shimla Hills.
Despite strict rules and ban on green felling, the forest
cover in Himachal has shown a piffling increase of 2
square kilometers!
According to the Forest Survey of India report of
2011, out of the states geographical area of 55,673
square kilometers, 3,224 square kilometers is under
dense forests, 6,381 square kilometers under moder-
ately dense forests and 5,074 square kilometers under
open forests. But these statistics barely tell the story of
the human greed and depredation, which are reduc-
ing the grand mountains into molehills.
Take for example the lower Shimla Hillsthe
Dharampur-Jagjitnagar-Kasauli-Solan area of Shiva-
liksaveraging a height of about 500 feet, where nes-
tle Sanawar School, Subathu and Dagshai canton-
ments. The Himachal cabinet recently made amend-
ments to Rule 38-A (a)(2) of the Himachal Pradesh
Tenancy and Land Reform Rules, 1975 (Section 118),
providing that for all purposes, other than for a
dwelling unit or shop, any non-agriculturist seeking
to acquire land with permission under the act shall
need an essentiality certificate (EC) from the con-
cerned department that will certify his eligibility.
The ostensible purpose was to stop speculators
LETTER FROM THE EDITOR
E
WHEN MAN TURNS
MOUNTAINS INTO
MOLEHILLS
INDERJIT BADHWAR
Photos: Inderjit Badhwar
3
INDIA LEGAL August 31, 2014
LETTER FROM THE EDITOR
4
August 31, 2014
from outside from pillaging the hills. Some years
ago, Lt Col Jiwan Sharotri rang alarm bells that
resonated in the hearts of everyone who has been
eyewitness to the gruesome reality: The fragile
ecology of Kasauli hills is being destroyed with
impunity. After damaging the peripheral hill
slopes and depleting the greenery by allowing
unrestricted construction activity, the state gov-
ernment allowed construction of multiple cottages
with even borewell facilities
The Kasauli-Jagjitnagar hills are ecologically
fragile and starved of water except during the
monsoons. But the HP government is turning a
blind eye to predatory developers like DLF, who
are boring into the hills and depleting the water
table that feeds the aquifers from which farmers
draw water. The hills are withering before our very
eyes and nobody gives a damn.
These photographs illustrate more graphically
than any statistical or government reports the
plunder that is occurring in broad daylight, on the
main and arterial roads right under the adminis-
trative nose of Chief Minister Vir Bhadra Singh.
See and weep. Does anybody care?
editor@indialegalonline.com
5
This case doesnt rest
Government, judiciary are embroiled in an ugly war over judges
appointments. RAKESH BHATNAGAR analyzes the genesis of the
collegium controversy
11
SUPREME COURT
THE NATION
AUGUST 31, 2014
LEAD
Old enough to kill, too young
to be hanged?
As the government introduces a juvenile bill to reduce the age for trial, the debate
on the maturity level of teenagers heats up. MEHA MATHUR probes whether a
serious offender should be treated like an adult
18
NDA-II = UPA-II
First, it brought out an unimaginative budget, Now, in quick
succession its reintroducing bills that it had opposed tooth and nail
when it was out of power. ANITA KATYAL questions the tall promises
of change that the BJP had made during the election campaign
22
6
August 31, 2014
VOLUME. VII ISSUE. 24
Editor-in-Chief
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Managing Editor
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CFO
Anand Raj Singh
VP (HR & General Administration)
Lokesh C Sharma
Are Sonia and Rahul
guilty of embezzlement
in the National
Herald case?.................34
Why delay in death
sentences is a ground
for commuting
of sentences..................40
Increasing instances
of violence
against Dalits.................50
Email forensic tools to pin
down criminals.......52
How Pune corporation
and builders cheat home
buyers of a basic
necessity, water..55
After a long spell of icy
relations, India, US come
close again, moved by
pragmatism............68
A perspicacious book on
the Israel-Palestine
conflict...........................72
7
31
A case of
oxymoron
Having masterminded the bloodbath in Mumbai
and spewed venom against India, Hafiz Saeed
is showing concern about terrorism in Pakistan.
VISHWAS KUMAR explores why he is so keen
about an image makeover
GLOBAL TRENDS
Flight to the finish
The crash of MH-17 flight over Ukraine brings
into focus the need for a monitoring agency to
police the skies. SHOBHA JOHN explores
several scenarios
AVIATION
58
A vision for life
A group of spirited visually-challenged people
have made the best of whatever life has offered
them. RAMESH MENON and SIPRA DAS
provide an insight into their world
PHOTO ESSAY
46
Objection, your
honor!
PRAVIN PAREKH, president, Supreme Court Bar
Association, comments on the charges of sexual
harassment against a judge in Madhya Pradesh
CONTROVERSY
43 Closure to a
caste clash
She lived amid violence and met a violent end.
Justice is finally delivered in the Phoolan Devi
murder case, as one person is convicted.
RAMESH MENON reports
CRIME
36 The black truth
VISHWAS KUMAR investigates how corporates,
in connivance with the center and states, are
indulging in illegal mining
ENVIRONMENT
A L S O
Cover Design: ANTHONY LAWRENCE
28
Let his work speak
for him
NV SUBRAMANIAN writes that in remaining silent
on many issues the prime minister is only
maintaining the dignity of the office
THE NATION
26
R
E
G
U
L
A
R
S
Letter from the Editor ............ .........................................................3
Letters..............................................................................................8
Quote-Unquote...............................................................................9
Ringside........................................................................................10
Supreme Court ..................................................................................16
Briefs .................................................................................................75
Consumer Watch ..............................................................................76
Is That Legal?....................................................................................78
Wordly-wise .......................................................................................81
People ...............................................................................................82
Cover Photograph: ANIL SHAKYA
Please email your letters to:
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Masochistic instinct
DOES India need every person to
get raped before the countrys
consciousness receives a jolt? Should
every girl or boy deconstruct the idea of
honor by losing it? Is honor a tangible
object that can be snatched, transferred
or played with?
The recent cases of a six-year-old
being raped in Bangalore or the HRD
ministry receiving two complaints of
sexual harassment against the chairman
of National Institute of Open Schooling
have opened up a plethora of
discourses about rape management.
Uttar Pradesh chief minister Akhilesh
Yadav goes as far as rebuking a
journalist for her queries about rape,
Aapko toh khatra nahin hua? (its not
as if you faced any danger?) Such
statements reveal how rape has
become a natural idea in the Indian
subcontinent. If it happens every day,
whats new about it?
Its brutally ironical, but rape seems
LETTERS
www.facebook.com/indialegalmagazine
www.twitter.com/indialegalmag
Unveiling truth
I am happy that your magazine is taking up
issues concerning Muslims and presenting
insightful views on them. The story, Growing
Distrust, in the August 15, 2014 issue was
worth a read. It must be noted that distrust
begets distrust. The articles expose the
malafide intentions of the law
enforcing agencies.
Mohd Waqar, Delhi
Working on an agenda
The entire revelations by Markandey Katju
smacks of opportunism, armed with an
agenda and seeking media attention. Why
did Katju not disclose details about the
rampant corruption in judiciary immediately
after he retired as judge of the Supreme
Court in September 2011? Why is he raking
up the issue when the judiciary is locked in
an identity battle with the executive. Does he
want to curry favor with the
Modi government?
Biplab Chowdhury, Noida
Testing times
Amit Shahs election as the BJP president not
only showcases Modis tightfisted control
over the party and the government but also
reflects a generational shift in the politics of
BJP. (Good Cop, Bad Cop, August 15, 2014).
8
August 31, 2014
to have become a cultural ideal in our
nation. The representation of rape in the
media shows how common the act has
become. From the coverage and tone of
articles to the construction of sentences,
news about rapes sound astonishingly
similar day in and day out. It exposes
the elitism that each one of us harbors.
Why is it that an urban middle class
womans rape finds headlines while a
Dalit womans assault may never even
get covered?
As an act, rape is more than sexual
gratification, more than forceful
penetration as the IPC wants to put it.
Rape is probably the masochistic
instinct of dominating the other, a way to
assert individual authority. The
naturalization, internalization and
representation of rape reveals how
deeply we have accepted it as a
cultural dogma.
Hansa Malhotra, Pune
Political observers will now constantly
compare the performance of the
Modi-Shah combo with the
Vajpayee-Advani team. As a result, the
burden of expectations will be much
more on them. And comparisons can
be irritating and even telling at times!
Amit Khurana, Gurgaon
QUOTE-UNQUOTE
Cycle to work, it is
healthier, much
more economical,
environment-friendly
too, and widely done
in foreign countries.
Chief Justice RM Lodha
offering a solution to acute
parking problems inside the
Supreme Court
It doesnt matter how
many members the
Judicial Appointments
Commission (JAC) has as
long as the eminence of
judiciary is maintained;
they must be in a majority.
Senior Supreme Court lawyer
Soli Sorabjee on setting up of JAC
replacing the collegium system
Politics is not a part-time job... A
leader must have fire in his belly.
Former external affairs minister K Natwar Singh
on Rahuls ability to become a leader
I do not know whether it happens in any
other country where you have to keep
proving that you are from that country.
Sania Mirza on observations that she
was no longer an Indian after marrying
cricketer Shoaib Malik of Pakistan
We will not be able to bring
black money from
Switzerland in our lifetime.
BJP MP Nishikant Dubey while
speaking on the Finance Bill in the
Lok Sabha
All Indians in Hindustan
are Hindus.... So you dont
have to make it a
Hindu nation.
Goa Deputy Chief Minister
Francis D'Souza
I will write my own book and
then you will come to know
everything. The only way truth
will come out is if I write. I am
serious about it and I will
be writing.
Sonia Gandhi on Natwar Singhs
claim in his book that she did not
accept the PMs post in 2004 due
to Rahul Gandhi
Had I been the dictator of
India, I would have
introduced the Gita and the
Mahabharata in Class I. That
is the way you learn how to
live life.
Supreme Court Justice AR Dave
prescribing the ancient system of
education in India
I realised in Sri Lanka that my dream of
playing in a World Cup was a bridge too far.
South African cricketer Jacques Kallis after retiring from
all forms of international cricket
9
As my sufferings mounted I soon realized that there were two ways in
which I could respond to my situationeither to react with bitterness or
seek to transform the suffering into a creative force. I decided to follow the
latter course.
Martin Luther King Jr
VERDICT
10
August 31, 2014
While rejecting Subramaniums name for the
post and damning his reputation, the govern-
ment failed to point out that as additional
solicitor general in 2007, he had filed an affi-
davit before the Supreme Court raising doubt
on the historical existence of Lord Rama. The
government had to withdraw this affidavit to
quell an uproar led by the BJP whose antipa-
thy to Subramanium is well known.
Ironically, total reliance on the premier
investigating agency and IB, which is not part
of an investigating agency recognized by
War over
Judges
markandey katjus accusations have served as a handy excuse for
denigrating the judiciary and helping the Modi government to push the
twin bills in parliament for scrapping the collegium system
By Rakesh Bhatnagar
T
HE controversy surround-
ing Gopal Subramanium
exposed the frail frame-
work based on which the
center decides the integrity
and merit of a judge rec-
ommended by the col-
legiums for high courts and the Supreme
Court. The confidential inputs were given by
the CBI and the secret information was fed by
the Intelligence Bureau to which the Right to
Information does not apply.
SUPREME COURT/
collegium battle
11
F
requent complaints keep pouring in
alleging corruption in the higher judi-
ciary. To give them due weight,
Markandey Katju, a former judge of the
Supreme Court who is now the Chairman of
the Press Council of India, also keeps updating
his blogs, adding more dimension to the cor-
ruption among judges and accusing some for-
mer chief justices of India of being soft on
venal judges.
Katju retired in 2011 as a supreme court
judge and has now been making rapidfire rev-
elations which could land a person of lesser
stature in the dock on defamation charges and
damage the peoples confidence in the system.
However, these few instances have ener-
gized the Narendra Modi government to has-
ten the requisite constitutional amendment
the Code of Criminal Procedure, goes against
the fundamental principle of jurisprudence
that until a person is held guilty by a court of
law, he is innocent. Subramaniums anguish
was understood and his withdrawal of consent
sent to the Chief Justice of India (CJI) RM
Lodha came as a shot in the arm for the Modi
government. The CJI-led collegium, which
had recommended his name for the Supreme
Court judge, was left with no option but to
accept the governments stand.
If the investigating agencies were so well
equipped to determine the antecedents of an
incumbent for the post of a high court or
Supreme Court judge why they did they fail in
finding facts about scores of judges manning
the higher judiciary who are now alleged to be
black sheep?
SUPREME COURT/
WHEN I was enrolled as an advocate in 1965,
the general opinion amongst the people at
large and particularly with the legal fraternity
was that the Supreme Court, high court and
district court judges were hundred percent
honest. People had boundless faith in the judi-
ciary. However today things are different.
There are serious allegations of corruption
against some of the judges of all courts. In two
decades, the consensus in the society on col-
legiums making judicial appointments has
gone down and the voices which helped in
creating the law in Second Judges Case
reported in (1993)4 SCC 441 and Third
Judges Case reported in (1998) 7 SCC 739
have some reservation.
By and large, the collegium appoints good
judges but there were many instances of
appointments of those who should not have
been appointed as judges and many good
judges who deserve to be appointed but have
not been appointed.
The collegium system has its genesis in a
series of three judgments that is now known
as the Judges Cases. SP Gupta vs Union of
India reported in 1981 Supp SCC 87
(December 30, 1981) held that the primacy
is of the executive authorities. This brought a
paradigm shift in favour of the executive
having primacy over the judiciary in judicial
appointments for the next 12 years. In fact
prior to SP Gupta case, the government never
asserted its primacy, but by and large, the
judiciary accommodated the views of the
government some cases.
On October 6, 1993, came a nine-judge
bench decision in the case of Supreme Court
Advocates-on Record Association vs Union of
The bars
viewpoint
Pravin H Parekh, the president of the
Supreme Court Bar Association on
the slugfest between the executive and
judiciary over judges appointment.
Excerpts from his observations:
collegium battle
12
August 31, 2014
and constitute a commission for performing
the job earlier being done by the collegiums
since 1993.
When Chief Justice Lodha fired his first
salvo, taking umbrage at what he described
was the undermining of the independence of
the judiciary and the collegium system, Law
Minister Ravi Shankar Prasad precipitously
withdrew the Judicial Appointments Bill
2013, moved by the UPA government, in the
Rajya Sabha.
Prasad then moved two bills in the Lok
Sabha where the BJP and its like-minded par-
ties have a sound majority. These bills are
National Judicial Appointments Commission
Bill (NJAC), 2014, and the Constitution (121st
Amendment) Bill.
While the Constitutional Amendment Bill
scraps the collegium system and establishes a
six-member body for the appointment of
judges, the NJAC Bill lays down the procedure
to be followed for appointment and transfer of
judges. The CJI will head the commission and
two seniormost judges of the apex court, two
eminent personalities and the law minister
will comprise the panel.
T
he composition of NJAC can be modi-
fied by parliament by an ordinary law.
Second, the independence and impar-
tiality of the proposed commission is feared to
be undermined by its secretariat which is pro-
posed to be a department of the government.
Moreover, the expenses, salaries, allowance of
the JAC would not be charged to the Consoli-
dated Fund of India but will be dependent
India reported in (1993) 4 SCC 441 as the
Second Judges Case. This was what
ushered in the collegium system... The major-
ity held that the chief justice of India (CJI) has
the primal role in such appointments. It over-
turned the SP Gupta judgment, saying: the
role of the CJI is primal in nature because this
being a topic within the judicial family, the
executive cannot have an equal say in
the matter
For the next five years, there was some
confusion on the roles of the CJI and the two
judges in judicial appointments and transfers.
In many cases, the CJIs took unilateral deci-
sions without consulting two colleagues.
In 1998, the President of India made a
presidential reference to the Supreme Court
as to what the term consultation really
means in Articles 124, 217 and 222 (transfer of
high court judges) of the Constitution. The
question was if the term consultation
requires consultation with a number of judges
in forming the CJIs opinion, or whether the
sole opinion of the CJI constituted the mean-
ing of the articles. The nine judge bench of
Supreme Court unanimously laid down nine
guidelines for the functioning of the collegium
for appointments/transfers. This came to be
the present form of the collegiums. Besides,
the nine-judge bench judgment in In Re:
Appointment & Transfer Of Judges reported in
(1998) 7 SCC 739 dated October 28, 1998,
used the opportunity to strongly reinforce the
concept of primacy of the highest judiciary
over the executive. This was the Third Judges
Case. The Supreme Court in this judgment
recommended that the collegiums making the
appointments to it should consist of the chief
justice and four seniormost judges, the opin-
ion of all the judges should be in writing, if
majority of the collegiums is against the
appointment of any person he should not
be appointed.
The ratio in the Third Judges Case has
been followed since then for appointment of
judges. However, the governments at the cen-
ter for the last many years have favoured
changing this system and creating a commis-
sion consisting of judges and non judges for
the appointment of judges to higher judiciary.
The inherent presumption and expectation
of the Second and Third Judges Case were
that the collegiums will select the best talents
to occupy the position of the Supreme Court
and high court judges, and that appointments
will be on merits and not on irrelevant and
extraneous considerations...
With this view the Constitution (120th
Amendment) Bill, 2013 (hereinafter, Consti-
tution Amendment Bill) was passed by the
upper house of parliament, the Rajya Sabha,
on September 5, 2013. The Constitution
Amendment Bill sought to replace the col-
legium with a Judicial Appointments Commi-
ssion. However, this bill lapsed.
All these years I was always hoping that
the judges in the collegiums should see the
writing on the wall that if they do not use this
power purely on merit and nothing but the
merit, some day power will be taken away
by parliament.
I can quote a large number of sitting and
retired judges of the Supreme Court criticizing
the appointments and non-appointments by
the collegiums.
Even for discussions on the present bill,
there have been no consultation with the elect-
ed representatives of the Supreme Court Bar
Association and it is very essential that the
present government does it.
The question is not capable of easy solu-
tion but one thing on which there is almost
unanimity amongst members of the Bar,
Bench and Civil Society is that the present sys-
tem requires modification.
(For full text visit www.indialegalonline.com)
13
on the budgetary allocation by the FM.
However, all was not hunky dory before the
collegium system came into being. Corruption
in judges appointments did exist. The Law
Commission in a report has already men-
tioned the appointment of Uncle Judges in
high courts while recommending that judges,
whose kith and kin are practising should not
be appointed in the same high court.
T
hen on the Law Day, a bench of the
then Justices Katju and Gyan Sudha
Misra passed a judgment on November
26, 2010 in which Katju went to the extent of
observing that a lot of complaints are coming
against certain Judges of the Allahabad High
Court relating to their integrity. Incidentally,
Katju belongs to Allahabad.
The wards or other relatives of the
judge(s) who used to practise in the same
court become multi-millionaires: have huge
bank balances, luxurious cars, huge houses
and enjoy luxurious life. The High Court really
needs some house cleaning (both Allahabad
and Lucknow Bench) and we request Chief
Justice to do the needful including recom-
mending transfers of the incorrigibles," the
Katju-Misra bench said.
Soon thereafter, the Allahabad High Court
at its full court meeting took serious excep-
tion to such maligning observations and con-
sequently it decided to file an application in
the apex court praying for expunging such
objectionable remarks.
Later, the Katju-Misra bench clarified its
earlier order and stressed there are excellent
judges too in high courts who are working
hard and doing their duty honestly. The judges
also stated they had not tarnished everyone
with the same brush. It is time for introspec-
tion rather than reaction, they added.
However, the malaise that man-managed
institutions inherit continue to threaten the
foundations of an independent judicial system
in India. Except stray instances like now when
a former judge is regularly revealing the
goings-on in the exclusive club of the col-
legium, the mechanism flourished under a
One of Katjus
blogs says
telephone lines of
some corrupt
judges were
tapped. This isnt
possible without
the centers aid. If
the chief justices
ignored his
warnings and
proceeded with the
elevation or
confirmation of
judges, what were
the home ministry
and PMO doing?
14
August 31, 2014
SUPREME COURT/
collegium battle
When CJI Lodha
objected to the
undermining of
the independence
of the judiciary and
the collegium
system, Law
Minister Ravi
Shankar Prasad
withdrew the
Judicial
Appointments Bill
2013 in the Rajya
Sabha. He then
moved two bills in
the Lok Sabha.
thick pall of secrecy.
To say that the executive has
little say in the appointment of
judges would be a ridiculous
proposition as the political class
was often seen as being up in
arms on the issue of removal of a
judge on charges of corruption.
Also caste, class and religion fac-
tors do play a role in approving
the selection of a judge made by
the collegium system.
One of Katjus blog says that
the telephone lines of certain
judges he thought were corrupt
had been tapped. The wire-tap-
ping isnt possible without the
governments aid. The judiciary
isnt equipped with its own inves-
tigation tools. If the various CJIs
ignored his warnings and pro-
ceeded with either elevation or
confirmation of judges, what
were the home ministry and the
prime ministers office doing?
T
he downfall of the collegium system
started with stiff-necked judges dili-
gently keeping the institution away
from the glare of the Right to Information, a
law which was created after a apex court judg-
ment in 2005.
Its worthwhile recalling a proposal mooted
by the Committee on Judicial Accountability
(a voluntary body of some retired judges and
like-minded lawyers) for setting up a full-time
and independent body called the Judicial
Appointments Commission (JAC) for the
selection of judges to high courts and the
Supreme Court.
Noted lawyer Prashant Bhushan, who
founded this committee, says such a body
could be constituted from among retired
judges or other eminent persons. He said the
collegium for the selection of chairman of the
proposed body should comprise all judges of
the top court and high courts.
The two members would be selected by
judges while a third member by the union cab-
inet; a fourth by a collegium of the leaders of
opposition of the two houses of parliament,
along with the speaker of the Lok Sabha; a
fifth member by a collegium of CEC, CAG
and CVC.
Bhushan says each of these members of the
JAC would have tenure of five years and would
thus be independent of the government as well
as the sitting judiciary. This body would be
mandated to function transparently and
would have to publish the names of the per-
sons shortlisted for appointment for the infor-
mation and comments of the people, before
the final selection.
Being a full-time body, it would also lay
down the criteria for selection and would be
mandated to go about its task in a structured
and rational manner.
The efficacy of the new bills piloted by the
Modi government would be known only after
many more seasons.
The Modi governments anxiety for replac-
ing the collegium system is understandable.
Against the sanctioned strength of 906 judges,
theres a deficit of 206 judges in the high
courts. Of these many judges, some would nat-
urally climb the ladder up to the Supreme
Court. But the motive, observers suspect, is to
increase the role of executive Big Brother in
judicial appointments.
15
IL
SUPREME COURT
16
August 31, 2014
S
hould babus be insulated from
judicial proceedings unless per-
mitted by the center or should
they be treated as any other ordinary
citizens in the eyes of the law, is an
issue that has been taken up by the
apex court several times.
In a latest stand, the court said that
there was nothing wrong in Section
19 of the Prevention of Corruption
Act that granted immunity to pub-
lic servants in corruption
cases, unless approved by a
competent authority. It
however held that the
concerned authority,
while granting the go
ahead, would have to
ensure that a public
servant is not subject-
ed to judicial proceed-
ings needlessly and at
the same time the prin-
ciple of probity in public
life is upheld.
C
oncerned that Delhi was without a govern-
ment for the last six months, the apex court
told Lieutenant Governor Najeeb Jung that
he needed to grope for a government or go for fresh
elections within five weeks.
Observing that an assembly in suspended anima-
tion wasnt doing anything in the public interest, a
five-judge bench wondered what would be its reac-
tion in case a Delhiite approached the apex court say-
ing that MLAs were being paid salaries from the
public exchequer but there was no work for them. It
wanted the authorities to arrive at a decision.
The bench was reacting to a PIL filed by Aam
Aadmi Party that wanted the Jung to dissolve the
assembly. It deferred the hearing for a later date.
In public interest
Question of law
Illustrations: Aruna
Y
ou cant have your cake and eat it too. That was the
message the apex court sought to give while ques-
tioning the centers argument that tribunals were
set up so that experts could settle disputes linked with spe-
cific domain knowledge, what judges cant claim to have.
Taking umbrage at the logic, a five-judge bench pointed
out if that was the case why was the center always rushing
to seek help from the judiciary every time there was a
problem with tribunals.
The bench was responding to a PIL filed by the Madras
Bar Association, which had questioned the National Tax
Tribunal Act. It objected to tribunals judging on legal as-
pects of taxation through chartered accountants and com-
pany secretaries and said that was the sole prerogative of
the courts. It also pointed out that high courts were being
slighted, as appeals against tribunals were heard only in
the apex court. The bench reserved its ruling.
Clean chit to babus
THE apex court took a stern view of
the adverse impact of the clinical trials
of HPV vaccinemeant to prevent cer-
vical cancer in womenintroduced in
Andhra Pradesh and Gujarat. The vac-
cine led to several deaths of minor girls
in these states. While issuing notice to
both the states on a PIL that wanted
the vaccines to be banned, the court
wanted the center and the states to
answer a) whether the Drug Controller
General of India and the ICMR had
followed proper procedures before
introducing the vaccine; b) what
action was taken by the states after the
parliamentary committee submitted
the report in August; c) the reasons
behind the deaths; d) whether the use
of vaccine was monitored by the center
and the states, etc and fixed the hear-
ing for October 28, 2014.
FOUR judges will join the Supreme
Court following a warrant of appoint-
ments by President Pranab Mukherjee.
Senior Advocate UU Lalit, Justice PC
Pant, Justice AM Sapre and Justice
R Bhanumathi were selected by the
collegium last month.
I
t is a gaffe that the apex court
would sooner forget. A contempt
court notice issued for the
Hindutva leader Giriraj Kishore was
not served on him for two decades.
And the court was not even aware
that Kishore had passed away in July
this year while dropping contempt
charges. It only cited his old age and
the delay in serving notice for ending
the matter.
Kishore was accused of contempt in
a PIL filed in the apex court on April
12, 1994, for his allegedly demeaning
remarks against it in the Ayodhya
controversy. Taking cognizance of the
remarks published in some publica-
tions, the court summoned him on
May 6, 1994. However, on March 25
this year, Kishores counsel Pallav
Sisodia appraised the court that no
notice was handed over to his client.
Kishore did appear on March 26, but
the judgment was reserved due to his
poor health.
Justice for all
Vaccine woes
T
here is need to fast-track all
categories of trials in India
and not just criminal cases
against parliamentarians, and for that
a competent criminal justice delivery
system is the need of the hour,
observed a three-judge bench.
Reacting to the Modi government
asking for speedy trial of criminal
cases against lawmakers, the bench
stated that one set of cases couldnt be
accorded priority at the expense of
others, which too needed quick dis-
posal. Even if criminal cases against
MPs were accorded importance,
inadequate manpower and poor
infrastructure in lower courts would
lead to a situation where other cases
do not get any attention, the bench
pointed out. It also referred to the
reality that special courts are eating
into the limited manpower of other
courts, thus resulting in cases getting
inordinately delayed.
The bench asked Attorney General
Mukul Rohatgi to come up with ideas
regarding fast tracking trials and the
criminal justice system, the need to
have additional courts, and toning up
the judicial infrastructure after delib-
erating with state governments.
DOWRY cases can be trashed if there is
unquestionable compromise between
the husband and the wife, even if the
offense under Section 498A and Section
4 of the Dowry Prohibition Act does not
deserve any settlement, the apex court
said. A two-judge bench premised its
observation on the logic that such
offenses are personal in nature and do
not impact the society at large, unlike
other crimes like murder and rape,
which are non-negotiable.
The bench was dealing with a dowry
case, wherein the Madhya Pradesh
High Court had convicted a man. But
the couple arrived at a mutual settle-
ment in the apex court, which closed the
case thereafter.
Making an exception
17
SC gets new judges
Error of judgment
What is the age of
INNOCENCE?
a new juvenile bill has reduced the juvenile age to 16 in case of
serious crimes. but in the process, it has stirred a hornets nest
By Meha Mathur
LEAD/
juvenile justice
Dear kindly Sergeant Krupke,
You gotta understand,
Its just our bringin up-ke
That gets us out of hand
Gee, Officer Krupke, were very upset;
We never had the love that ev'ry child oughta get.
We aint no delinquents,
Were misunderstood.
Deep down inside us there is good!
Officer Krupke, youre really a square;
This boy dont need a judge, he needs an analysts care!
Its just his neurosis that oughta be curbed.
Hes psychologicly disturbed!...
Hey, Im depraved on account Im deprived.
From West Side Story
CELLULOID
SENSIBILITIES
Scene from the
Hollywood classic
18
August 31, 2014
T
HESE are lines from a
street gang of American
delinquents who are
poking fun at a legal sys-
tem that blames society
rather than the juvenile
criminals for violence. As
Indian society today grapples with the
challenge of juvenile criminals that the west-
ern society has been facing for many years
now, the big question is, should deprivation
be a justification for depravation? Or should
a serious crime, which has perhaps ruined a
life, be treated with the same yardstick,
irrespective of age, social or economic
background?
On August 6, a day when a group of five
juveniles mercilessly stabbed a 20-year-old
in a Delhi market, the government approved
the Juvenile Justice (Care and protection of
Children) Bill, 2014. The bill will, if passed,
treat minors older than 16 as adults if they
are involved in serious offenses like rape and
murder, and try them in courts as adults.
Earlier, 16 years was the juvenile threshold in
India, but the Juvenile Justice Act, 2000,
amended it to 18 years in conformity with
UN laws.
The demand for reducing the upper age
limit for juveniles has been gathering steam
ever since the gruesome rape and murder of
Nirbhaya in New Delhi in December 2012.
Of the five accused, the juvenile among them
was alleged to be the most brutal and had
inflicted grievous injuries on the 23-year-old
physiotherapy student. In the Shakti Mills
rape of a journalist in Mumbai in 2013, again
a juvenile was involved. Further, in the mur-
der of a 24-year-old three years back
in Chandigarh, it was again three juveniles
who were involved. And on April 22 this year,
a local court convicted all of them, now
20 years old.
ARE THEY ADULTS?
These incidents shook society and made us
question why 18 should be the cut-off year for
being called a juvenile. Can a 17-and-a-half-
year-old then get away with most grotesque
crime because of this age immunity? Even
the Supreme Court questioned this aspect a
few weeks ago. Minister for Women and
Child Development Maneka Gandhi too
demanded that juveniles accused of grue-
some crimes should be tried as adults.
However, what should have got societys
overarching consensus has instead, became a
subject of debate, as journalists, activists and
lawyers feel that at 16, an individual is not
mature and cant fully comprehend the
implications of his actions. Also, the focus
should be on reforms, not retributive justice.
Several former judges of the Juvenile
Justice Board (JJB) have also asked how, in
the absence of specific guidelines, the mental
maturity of an offender can be ascertained.
Others feel the decision to amend the juve-
nile limit is not in sync with the recommen-
dations of the Justice J S Verma Committee,
which had said that resetting the age of juve-
nility was unviable.
Hanging to death a juvenile is really a
shortcut that might make the public feel bet-
ter for a few minutes, but it does not solve the
issue at hand. Retribution is no solution. We
cannot exclude the possibility that the juve-
nile convict can be reformed. Its not neces-
sary that he will repeat a crime he committed
at the age of sixteen or fourteen, writes
Palash K Mehrotra, author of Butterfly Gene-
ration, in Mail Today.
Then, theres the plea that most of these
offenders come from extremely deprived
backgrounds, and grew up witnessing vio-
lence at close quarters. Aparna Ravi, a senior
researcher at the Centre for Law and Policy
Research, writes in her piece, Child and
Punishment in The Indian Express: The
purpose of juvenile justice system is not to
establish the guilt of the alleged offender, but
to look into the underlying social causes
for the alleged crime, with the aim of
rehabilitating the juvenile offender.
She cautions: While the reaction to the
Delhi gang rape and its aftermath is
Why are we obsessed with the chronological
age? We have women who enter puberty at nine
now. Are we not supposed to bring down the
juvenile and adult age too?
DR TULSI PATEL, professor of Sociology at the
Delhi School of Economics
19
Without Parole for Juvenile Killers and
Violent Teens, says in an article: Some juve-
niles commit crimes so horrific in their
depravity that justice could not be carried out
in the juvenile system.
Even the US is grappling with the dilem-
ma of punishing such juvenile criminals.
Despite the US Supreme Court voting 5-4 to
outlaw the death penalty for juvenile crimi-
nals in March 2005, calling it unconstitu-
tionally criminal, 19 states still allow their
trial and conviction as adults. Among the
cases that shook the country were:
Sarah Johnson of Idaho, who shot down
her parents in 2003 because they took firm
action against her for spending a night with
her boy friend.
Jordon Brown killed his fathers eight-
month-pregnant girlfriend in Pennsylvania;
the charges were initially filed in the adult
court, but later shifted to a juvenile court,
despite the state law, under which any person
above 10 has to be tried as an adult if he kills.
TJ Lane, who killed his classmates in his
Ohio school, and faces charges as adult.
In China, which faces increasing cases of
juvenile crimes, especially rape, a court sen-
tenced a 17-year-old boy, son of a famous
understandable, it is important that a single
extreme case does not form the locus for law
reform. She takes a phrasemoral panic
that Elizabeth Scott and Laurence Stein-
berg have used in their book Rethinking
Juvenile Justice, to describe the escalating
pattern of alarm in response to a perceived
social threat.
WORLDWIDE CONCERN
There is no doubt that juvenile crimes need
to be addressed as these are increasing and
are not one-off cases. According to the
National Crime Records Bureau, there was a
13.6 percent increase in juvenile crimes from
2012 to 2013 (31,725 cases in 2013 as against
27,936 cases in 2012). Rape cases increased
by 60.3 per cent during the same period. (See
box item: Juvenile Crimes, 2013).
The causes of delinquencypoverty, dep-
rivation, broken homes, overexposure, male
domination, pathological disorders are
subject matter of psychological and sociolog-
ical study in themselves. But poverty and
deprivation cant be treated as reasons for
giving immunity to an offender. World over,
theres the realization, as Charles D Stimson,
author of Adult Time for Adult Crimes: Life
The juveniles in conflict

with law (IPC crimes) in
2013 have increased by
13.6 percent over 2012
As against 27,936 IPC

crimes by juveniles during
2012, 31,725 cases were
registered in 2013
The highest increase in

the crimes by juvenile was
observed under the head
Assault on women with
intent to outrage her
modesty (132.3 percent),
followed by Insult to the
modesty of women
(70.5 percent) and rape
(60.3 percent)
Out of the total juveniles

involved in various crimes,
8,392 were illiterate and
13,984 had education up to
primary level. These two
categories together
accounted for 51.9 percent
of the total juveniles
arrested during the
year 2013
Children living with

parents (35,244)
accounted for 81.0 percent
of the total juveniles
apprehended. The share
of homeless children
(2,462) who were involved
in various crimes was just
5.7 percent
A large number of
juveniles (50.2 percent)
belonged to poor families,
whose annual income was
up to `25,000. The
percentage of juveniles in
other income brackets was:
between `25,000 and
`50,000, 27.3
between `50,000
and `2,00,000, 20.2
between `2 lakh to
`3 lakh, 1.4
Juvenile Crimes, 2013
Findings of the National
Crime Records Bureau
report, Crimes in
India, 2013
20
August 31, 2014
UNI
LEAD/
juvenile justice
CHILDHOOD
GONE WRONG
A group of
juveniles in
Jharkhand, facing
rape charges
singer, to 10 years in prison for his involve-
ment in a gang rape in Beijing, to make an
example out of him.
CALENDAR-STRUCK
The key question being raised in India is,
why are we obsessed with the chronological
age? Dr Tulsi Patel, professor of sociology at
the Delhi School of Economics, wonders:
What is so sacrosanct about the calendar?
We have women who enter puberty at nine
now. Are we not supposed to bring down the
juvenile and adult age too? We have to see
how hormones are developing in an individ-
ual. The calendar doesnt decide hormones.
Clinical psychologist and counselor Dr
Aruna Broota says that each case is different
and there should be a psychiatric evaluation
of the mental functioning of the person. Like
Dr Patel, she says that a persons maturity
should be determined by his hormonal devel-
opment and not by his bone age. We expect
all sorts of social compliance from the same
15-year-old child. He should study on his
own, help his father, and accompany his
grandparents for social calls, so why dont we
expect that the child will also develop sexual
understanding? Why do we brush aside that
subject by saying bachha hai? We need to
look at emotional capabilities. What an 18-
year-old could do, a 15-year-old is doing.
T
he risks of over-dependence on juve-
nile justice also cannot be ignored. Dr
Patel says that at the back of the mind
of a juvenile criminal is the awareness that he
will go scot-free after three years despite the
gravity of the crime. A sense of fear needs to
be instilled, she says, which can only be done
with harsher punishment.
Also, juvenile homes are no places for
reform. A teen gets exposed to the worst
forms of social behavior and crimes there
(including sodomy, gang wars and drug
abuse) and comes out as a hardened crimi-
nal. Worse, the police are supposed to
destroy the records of the juvenile after the
completion of the sentence. So, imagine the
danger of the juvenile rapist in the Nirbhaya
case roaming in the city once again after
three years, unidentified.
Considering the sensitivity of this issue,
any legal step would be really effective if we
go in for a jury system to examine the cases
involving teenagers. A senior editor suggest-
ed that each case needs to be looked at differ-
ently as it cannot be generally assumed that
all those under 18 did not deserve to be pun-
ished for serious crimes. He says the jury
should comprise of psychiatrists, sociologists,
psychologists, child care specialists and
members of the public, including parents.
SOCIAL CHANGE
The new bill will perhaps act as a much-
needed deterrent. While it will enable per-
sons above 16 to be tried as adults for serious
offenses like rape and murder on a case-to-
case basis, they will still not get death or life
sentence. At the same time, the bill will have
repercussions on many other laws, which will
have to be amended due to the reduction in
the age of juveniles. But the bigger obstacle
India will have to overcome is that the coun-
try is a signatory to three international con-
ventionsUnited Nations Standard Mini-
mum Rules for the Administration of
Juvenile Justice (Beijing Rules), 1985; UN
Convention on the Rights of the Child
(UNCRC), 1989; and United Nations Guide-
lines for the Prevention of Juvenile Delin-
quency (Riyadh Guidelines), 1990. These
conventions make it mandatory for the juve-
nile age to be 18. It will be a challenge for the
new government to reconcile our domestic
compulsions with the requirements of these
international protocols.
While this bill will facilitate legal restruc-
turing, Dr Broota calls for a more fundamen-
tal shift. What we need is right education, by
which I dont mean literacy, but restructuring
family interactions. When a child sees that
the men in the family dont respect the wom-
enfolk, he too starts perceiving the mother as
a weakling. And if you dont respect women
at home, why would you respect them on
the roads?
Dr Patel also calls for deep-rooted social
reforms. Entrenched male-centric egos are
at play. Even if you were to give the harshest
punishment, I am not sure if the culture of
violence will subside.
Till that utopian change, heres hoping for
some reprieve on the judicial front.
Empowering the
Juvenile Justice Board
with the right to decide
whether the trial of
juveniles above 16
years involved in
heinous crimes will
happen in regular court
or not
Bringing in more
clarity in the procedures
and roles of the Child
Welfare Committee and
Juvenile Justice Board
Making it mandatory
for all child-care
institutions to
register, failing which
they would face
stiff penalty
Enforcing severe
punitive measures with
regard to offenses
against children;
broadening the
definition of corporal
punishment to include
verbal abuse too
Providing statutory
status to the Central
Adoption Resource
Authority for facilitating
inter-country adoptions
Strengthening and
streamlining the
measures for adoption
of children
Making ragging
punishable by up
to three years in jail
and a fine up to
`one lakh
The new bill
The key provisions of the
Juvenile Justice (Care
and protection of
Children) Bill, 2014
21
IL
NDA-II=UPA-II
the bjp-led nda is aping the
policies of its predecessor in many
respects, leaving the voters to
wonder what was the magic mantra
that the party promised during the
election campaign
By Anita Katyal in New Delhi
THE NATION/
new government
A
FTER its stunning victory in the 2014 Lok
Sabha elections, it was widely expected that
the Bharatiya Janata Party-led National
Democratic Alliance government would
unveil its future agenda during its first
Parliament session. Given its brute majority in the Lok
Sabha, the ruling alliance has the luxury of pushing ahead
with fresh ideas to signal its much-promised break from
the past. But as the ongoing budget session draws to a
close, it is evident that the three-month-old NDA govern-
ment is yet to usher in any radical changes as far as its leg-
islative agenda is concerned.
Opting for continuity in governance, the ruling alliance
has instead resurrected the bills, which were drawn up by
the previous Congress-led United Progressive Alliance
government, but could not be approved by parliament dur-
ing its tenure. The NDA government has obviously not
done its homework.it has not been able to bring any new
bills. It is continuing with the agenda set by the Congress,
remarks former Congress minister Rajeev Shukla.
In fact, shortly after taking charge, Prime Minister
Narendra Modi had asked his office and the parliamentary
affairs ministry, headed by M Venkaiah Naidu, to scruti-
nize all the bills which were not cleared by the UPA govern-
ment and to list out those which could be taken up during
the budget session on a priority basis.
Since it took charge in end-May, one explanation being
offered by the NDA government is that it had little time to
prepare its own legislation for the budget session. But
having promised to end the policy paralysis witnessed dur-
ing the previous regime, the Modi government has been
under pressure to deliver on its promise of speeding up the
decision-making process. It could hardly afford to go
through its first parliament session without having any-
thing to show by way of its legislative achievements.
Moreover, the BJP felt its move to complete the UPAs
unfinished agenda would make it easier for the ruling
alliance to enlist the support of the Congress party, which
would find it difficult to oppose the bills its government
had introduced.
The NDA government has the numbers to push
through any legislation in the Lok Sabha but it is com-
pelled to do business with the opposition in the Rajya
22
August 31, 2014
Sabha, where it is in a minority. Consequently,
the ruling alliance has dug up the UPA gov-
ernments Insurance Laws (Amendment) Bill,
which seeks to raise the cap of foreign invest-
ment in the insurance sector from the current
26 per cent to 49 per cent.
Similarly, the Judicial Appointments
Commission Bill, seeking to do away with the
present system of judges appointing judges
and giving a greater say to the executive in
this exercise, has also been dredged up. It was
passed in the Rajya Sabha last year but failed
to clear the Lok Sabha hurdle.
The Securities Laws (Amendment) Bill,
approved by the Lok Sabha on August 6, is
also the UPA governments brainchild. This
legislation empowers SEBI investigators to
crack down on fraudulent investment sche-
mes like the recent Saradha case.
The Narendra Modi-led government is
also moving ahead to amend the archaic labor
laws. The proposed legislation allowing
employers to hire more workers without com-
plying with the labor laws, was initiated dur-
ing the UPA-I tenure in 2005, but had to be
withdrawn following opposition from the Left
parties, which were lending crucial outside
support to the government. A fresh bill was
introduced in the Rajya Sabha in 2011 but it
failed to make any headway.
In fact, much of the groundwork for the
Juvenile Justice Act, cleared by the union cab-
inet on August 6, was undertaken by woman
and child development minister Maneka
Gandhis predecessor Krishna Tirath.
The fact that the substantial part of the
legislative agenda of the NDA government is
a continuation of the bills proposed by the
UPA government is a both a validation of
the previous regimes polices but it also
demonstrates a lack of any fresh thinking on
part of the BJP, says former law minister
Ashwani Kumar.
Ironically, the ruling alliance is now seek-
ing passage of the bills, which were consis-
tently blocked by the Bharatiya Janata Party
when it was in the opposition during the UPA
tenure. This clearly betrays the doublespeak
of the BJP, whose stand depends on whether
it is in the government or in the opposition,
Ashwani Kumar adds.
Admitting that the ruling alliance is taking
forward the previous governments pending
bills, Finance Minister Arun Jaitley maintains
the legislation has been suitably tweaked and
amended. The Judicial Appointments
Commission Bill, according to him, has been
altered significantly. Its a brand new bill,
he underlined.
W
hile Jaitley is predictably defend-
ing his government, the new
finance ministers maiden
budget has also been labeled by the
Congress as a UPA budget. Taking a dig at
his successor, former Finance Minister P
Chidambaram was quick to point out that
the BJP budget carried the imprint of the
UPA governments policies. Welcome to the
real world. BJP sought a mandate for a
Congress-mukt Bharat. My friend Arun
Jaitley would have realized that it is not
possible to have even a Congress-mukt
budget, remarked Chidambaram.
With the Congress gloating that the
NDA government was continuing
with its policies, BJPs parliamentary
managers were very confident that
its legislative agenda would have a
smooth run in parliament. The
Securities Laws (Amen-
dment) Bill was cleared by
Parliament without any
murmurs from the main
opposition party. However,
the BJP was taken aback when
the Congress joined hands
with other opposition par-
ties in the Rajya Sabha to
stall the introduction of the
crucial Insurance Laws
(Amendments) Bill.
Taking advantage of its
numerical strength in the upper
house, the Congress has
Welcome to the real world, former
Finance Minister P Chidambaram
quipped, reacting to Arun Jaitleys
budget which has a strong UPA imprint.
23
FDI limit to 49 per cent. since the standing
committee had made some observations, cer-
tain doubts had arisen, explains Arun Jaitley.
BJP leaders privately maintain the bill was
stalled because of the poor interpersonal rela-
tions between Yashwant Sinha and
Chidambaram. Others recall that relations
between the Congress and the BJP had dete-
riorated to such an extent that the over-
whelming mood in the saffron party then was
to veto every major bill moved by the UPA
government. The Congress was helpless, as it
needed BJPs support to push through its leg-
islative agenda in the Rajya Sabha, where it
was in a minority.
succeeded in unsettling the BJP
leaders. The Congress-led oppo-
sition demanded that the legisla-
tion be referred to a parliamen-
tary panel for a detailed scrutiny,
as the ruling alliance has intro-
duced a number of substantive
amendments in the original bill
tabled by the UPA government
way back in 2008.
While the Left parties and the
Trinamool Congress are ideologi-
cally opposed to the insurance
bill, the Congress has its own
scores to settle with the BJP.
After all, it was the BJP which
stalled the same bill for six years
when the UPA was in power.
A
fter the UPA govern-
ment introduced the bill
in the Rajya Sabha, it
was referred to the parliamentary
standing committee on finance,
headed by former finance minister and BJP
leader Yashwant Sinha. The panel, which sub-
mitted its report in 2011, rejected the UPAs
move to raise FDI in the insurance sector to
49 per cent. Chidambaram made several
attempts to address the BJPs apprehensions
and even offered to amend the bill to make it
more acceptable, but to little avail.
The wheel has now come full circle. After
blocking the bill for all these years, the BJP is
now working overtime to persuade the oppo-
sition to approve the same legislation at the
earliest. However, its leaders are hard pressed
to explain their past opposition to the bill.
We were never really opposed to raising the
THE NATION/
new government
Insurance Laws
(Amendment) Bill
Tabled by UPA
government in 2008
Reintroduced by the NDA
government in its first
budget session
Blocked by the
opposition in Rajya Sabha
Judicial Appointments
Commission Bill
Tabled by the UPA
government in 2013
Cleared by the NDA
government, but no date
set for its reintroduction
Factories
(amendment) bill and
the Apprenticeship
(amendment) bill.
Reintroduced by the
NDA in its first budget
session
Securities Laws
(Amendment) Bill
Tabled by the UPA
government in 2013
Reintroduced by the
NDA in the budget session
REPEAT ACT
Why is the government in such a
tearing hurry? They kept us waiting for
six years, asks Ghulam Nabi Azad,
leader of opposition in Rajya Sabha,
talking about NDAs U-turn on
insurance bill.
24
August 31, 2014
Having been at the receiving end for the
past decade, the Congress has now got an
opportunity to corner the BJP. While main-
taining it is not opposed to the bill, the
Congress insists it should be referred to a
parliamentary select committee, as the NDA
government has changed the definition of
FDI to include investments by foreign invest-
ment institutions (FIIs), which could facili-
tate the entry of hot money.
Why is the government in such a tearing
hurry? They kept us waiting for six years and
now they cant even wait for a few months,
asks Ghulam Nabi Azad, Congress leader and
leader of opposition in the Rajya Sabha.
The Congress gameplan is
to buy time and delay the
passage of the bill. It wants
the BJP to sweat it out, espe-
cially since Prime Minister
Narendra Modi is keen that
the NDA governments first
major reform bill should get
the parliamentary approval
before his September visit to
the US. Besides wanting to
send out an unequivocal mes-
sage that it is serious about
pushing economic reforms,
the NDA government also
needs to soften the blow
because its tough stand on
food subsidies at the recent
WTO meeting has come in
for public disapproval by
Washington.
Keen to score a victory, a
desperate BJP has attempted to divide the
opposition and has even threatened to call a
joint session of parliament to secure the pas-
sage of the bill. Promulgation of an ordi-
nance is also being mentioned.
A plaintive Venkaiah Naidu was heard
telling the opposition recently: We opposed
the bill when you brought it. We brought the
bill and you have opposed it. Now lets move
forward. But the Congress is unwilling to
cooperate. After being decimated in the
recent Lok Sabha polls, the Congress has got
a chance to prove it is still relevant. It is
unlikely to fitter away this opportunity,
which has landed in its lap very easily.
Eager to prove to the electorate that it
has got its act together, the BJP wants
the insurance bill passed at any cost.
Parliamentary Affairs Minister Venkaiah
Naidu wants the Congress-led
opposition to move forward.
25
IL
PM
THE NATION/
governance/ the prime minister
26
August 31, 2014
T
here is a growing chorus of criti-
cism that Narendra Modi is as
reserved as prime minister as he
was outspoken during the 2014
general election campaign. Com-
parisons are being made to
Manmohan Singh. His silence,
especially on various sectarian incidents, has drawn
particular attention. Should Prime Minister Modi
open up? It is his decision. Reserve generally suits a
prime minister and heads of governments as such. His
government can be more communicative, however, to
remove misunderstandings and some repair, appa-
rently, is underway in that direction.
In practising strategic silence, Modi is different
from Manmohan Singh, who was Sonia Gandhis
nominal prime minister. This writer did not watch
Modi closely as Gujarats chief minister; but those who
did, see a similarity of style in his present taciturnity
and composure. Even without the benefit of that histo-
ry, it is obvious that Narendra Modi has chosen quiet
over loquacity. He has often said that he wishes his
work to speak for him and his government. But his
general uncommunicativeness is also an attempt to
insulate the prime ministry from the daily conflagra-
tions that confront government.
It is not as if the prime minister has not spoken. In
SILENT
in a country used to noise,
modis decision to work
quietly has not really gone
down well with many
By NV Subramanian
Sipra Das
has finalized a joint government-party mecha-
nism to address gaps in communication. But
there is no call for the prime minister to speak
more than is absolutely necessary. Silent waters
run deep. This noisy country needs to remem-
ber that once in a while.
Media criticism of government is valid,
provided it is not deviously motivated. But the
media hates to turn the spotlight on itself. The
editor who took `60 lakh to suppress tapes
about a parliament scandal escaped scot-free
and can be heard now and then lecturing about
journalistic integrity! A popular or hated
television anchorhave your pickvolun-
teered to do a positive programme on a jailed
celebrity for the price of `5 crore. The offer was
scorn-fully rejected. Talk of the pot calling the
kettle black.
NV Subramanian is editor,
www.newsinsight.net and writes on
politics and strategic affairs.
parliament, he condemned the random killing
of a Muslim youth from Pune and the murder
and rape of two girls in Uttar Pradesh, seeking
general compassion for womenfolk. But the
nature of his office is such that he ought not to
be heard often, because it would rob the weight
of his sentiment.
A
ll over the world, wise political leaders
weigh their words. They are acutely
aware of the consequences of their
articulation. In exceptional circumstances,
they would be compelled to break out of the
mould of silence. In war, the leader cannot be
silent and is responsible to keep up morale of
his forces and of his people, and to challenge
the enemy. In the event of national disaster, the
head of government is expected to rally the
broken citizenry, but in words and deeds equal-
ly. It differs from situation to situation. In no
case must the prime minister speak more than
is absolutely necessary.
India has a talkative culture. It is possibly
the noisiest country in the world. These high
noise levels have done the country no good.
After Indian films, the news television studios
are noisiest places. Unless participants in a
debate come to blows, it cannot be deemed a
good night. Narendra Modis silence ruins
everything for news channels. There is no noise
from the prime ministers office. This destroys
their TRPs. Clearly, the media is fueling the
Narendra-Modi-is-not-talking controversy.
Do the people care? Not really, so long
prices are low and the quality of life improves.
This has not happened and it is too soon to
expect it to either. But volubility will not mend
matters. What is Modi supposed to do? Be on
Doordarshan every night to assuage people
that the good days are imminent?
There is a communication gap; but it is not
necessary for the prime minister to fill it. The
government has been speaking, but perhaps
not in an organized way. For example, assorted
Union ministers have corrected distortions
apropos Telangana-Sania Mirza, Shiv Sena
lawlessness in Delhis Maharashtra Sadan, the
Hindi issue, etc. Narendra Modi chose to speak
in English at a satellite launch ceremony in
Andhra Pradesh. It is not that the government
is not reaching out. But the nature of the beast
is to be slow and awkward.
News reports say that Prime Minister Modi
27
IL
IT is the expectations that are now
coming to roost. It is not just that the
PM is silent on issues but a lot of flak is
also for the inaction, be it in the case of
reining in lumpen elements or taking
strong decisions on the economy. The
expectations from Modi government
were sky high and these expectations
were nurtured by Modi himself during
the elections.
One might call it election rhetoric
and let it pass but in a democracy,
when a party can move from 2 seats to
282 seats and a party with 400+ seats
comes crashing down to 44, things
move very fast and this disenchantment
has to be kept in mind because the
people are restless. It looks as if the
system seems to be overpowering and
by that what I mean is two things
1) the stranglehold of babudom, which
got reflected in the budget (which many
of my friends say was the bureaucrats
revenge and 2) succumbing to
perennial election trap. The federal
government cannot keep overlooking
things or to put it crudely appeasing
some state or the othera la train fare
rollback for Maharashtra or the UPSC
farce being run around now for the
sake of UP and Bihar by-elections.
On the economy itself it is a messy
scenarioempty coffers, poor
monsoonbut signaling in the budget
would have helped. People were ready
for a harsh budget and even Modi
mentioned sometime/somewhere that
this budget it would be a bitter pill to
swallow for a better tomorrow, but the
bitter pill never came.
People are willing to buy the
government argument that it did not
have time and so are willing to forgive
the current budget (but I would say a
fantastic lost opportunity) which was
clearly lacklustera rehash of
Chidambarams budget. However if in
February 2015 the government fails to
deliver what one calls a blockbuster
budget like Chidambarams dream
budget then people would be
unforgiving and not before long this
government would be anointed as
UPA- III. I know I am speaking with a
very narrow blinkers on approach with
the economy in focus, but thats the
miracle which can usher India out of
the mess.
A reader
Counterpoint
AVIATION/
conflict zones
WHO WILL
THE SKIES?
POLICE
with mh17s downing over ukraine, there
are calls for icao to enlarge its mandate
and ensure global air safety
By Shobha John
F
lying seems fraught with dan-
ger. This was evident when
Malaysian Airlines MH17 was
brought down in Ukraine on
July 17 by pro-Russian sepa-
ratist rebels, killing all the 298
passengers on board. With conflicts erupting
all over the world, be it in the Middle-east,
parts of Africa or Afghanistan, and taking on a
global huethe MH17 crash encompassed
victims from 10 countriesthe perilous nature
of air travel is becoming all too evident. But
are air regulations and civil aviation bodies up
to the challenge?
Already, there have been calls to incorpo-
rate into international law, through appropri-
ate UN frameworks, measures to govern the
deployment of anti-aircraft weaponry. Airline
and pilot organizations are calling for more
guidance on operating safely in conflict zones
and asking why the International Civil
Aviation Authority (ICAO), UNs civil aviation
body, did not issue a warning about the poten-
tial dangers of flying over Ukraine.
The International Federation of Air Line
Pilots Associations (IFALPA), a global pilots
association, has advised its members: If
unsure or uncomfortable, pilots should not
overfly or operate into potentially hostile
areas. The MH17 crash has highlighted the
fragmented nature of global aviation regula-
tions, which are chaotic and indecisive about
aviation routes and war zones.
FANGLESS ICAO?
Some have lambasted Montreal-based ICAO,
too. An article, The Dangerous Skies: Aviation
Responsibility in times of War in International
Policy Digest, said: ICAO is an organization
that does take interest in aviation safety, but it
is one without fangs. ICAO tends to come
across as a bit rarefied, distant from the actual
play of flight travel. Safety advisories do not fall
into its remit, the feeling being that such state-
ments should come from another source.
What led to the furore was an ICAO state-
ment on July 24 that it was not its job to warn
nations about the dangers of missiles. Its
spokesman Anthony Philbin said it was the
responsibility of its sovereign member states to
advise other states of potential safety hazards.
28
August 31, 2014
the blame. Each is responsible for the safety of
aircraft operations, clarifies Lumba.
ROLE CONFUSION
Just like the UN cannot be a super cop,
explains Lumba, the ICAO cannot be a super
regulator. Its role is purely recommendatory in
nature and acts, at best, as a facilitator, he says.
Each nation is responsible for the airspace
over it. Ukraine restricted airspace to 32,000
feet, based on threat perception. If individual
nations perceive a greater threat perception,
they are to take appropriate action.
ICAOs principal function, says Mark D
THREAT PERCEPTION
The shooting down of MH17
in Ukraine has raised
concerns on airlines flying
over conflict zones
June 14, 2014: An Air Force
Ilyushin Il-76 aircraft was shot
down on approach to
Luhansk International Airport;
all 49 dead
July 14, 2014: A Ukrainian
Air Force AN-26 transport
plane flying at 21,000 feet
was shot down. Militia report-
edly claimed a Buk missile
launcher was used to bring
it down
July 16, 2014: A Sukhoi
Su-25 close air support
aircraft shot down
Ukraines crisis
But in a belated somersault, on July 29, after an
extraordinary meeting with four internation-
al civil aviation organizations, ICAO said it
would set up a task force to address gaps in the
system and said more needed to be done to
ensure that all member states provide accurate
and timely intelligence when it comes to poten-
tial risks to passenger planes in their airspaces.
To understand ICAOs reluctance to even
issue warnings, one must understand what its
mandate is. It is a UN body with 191 signatory
states. Its advisories are based on decisions
taken by delegates. Captain Shakti Lumba, the
chief of operations of Dubai-based Nashwan
Aviation Szc and former vice-president, flight
operations, of Indigo Airlines says that ICAOs
statement of not wanting to interfere is in
keeping with its obligations.
ICAOs role is misunderstood. If one is to
find fault for the downing of the Malaysian jet,
then it is Ukraine, national civil aviation regu-
lators and individual airlines who should take
There is an increasing demand that the
UN body ICAO takes up the larger role of
alerting airlines about route safety in the
wake of the Malaysian Airlines disaster.
29
U
N
I
provider of the contracting state. Legally, it is
their sole responsibility to release such a circu-
lar, says Martin.
CASE OF DISPUTED ZONES
But conflict zones are an altogether different
ball game. The area of jurisdiction can some-
times be nebulous.
Disputed territories the world over, stress-
es Martin, are not formally recognized by
ICAO, though it does strive to extend support
and compliance. In the Ukraine case, the dis-
puted territory is controlled by rebels and not
formally recognized as a state by the UN, any
country or ICAO, he says.
So it is up to each airline to access where it
should fly. But with the reduced clout of pilot
associations, the last safeguard has been lost.
For example, the Indian Commercial Pilots
Association, the union of the erstwhile Indian
Airlines, used this criterion in 1992 to stop
pilots from flying into J&K when insurgency
was at its peak and there was intelligence
information that militants had missiles. The
chief labor commissioner upheld this deci-
sion, says Lumba.
Even pilots can put their foot down if they
feel an area is unsafe. But very few exercise
such authority due to management pressures.
Though ILO resolutions prohibit placing
workmen in areas of danger, most airlines and
countries do not follow it, says Lumba.
While the Ukraine scenario was not
expected, as the plane was flying over the dan-
ger limit at 33,000 feet, sometimes cost con-
siderations can make airlines turn a blind eye
to safety. Longer routes mean more fuel and
more expenses.
Ukraine, for example, is in the middle of a
common direct route between Europe and
south-east Asia. Further, countries receive
over-flight fees from commercial flights above
their territory, often giving safety the go-by. In
such cases, domestic aviation authorities
should exercise their powers, stress experts.
For example, the US Federal Aviation
Administration recently issued an order allow-
ing its airlines to fly over Israel.
Caution more than commerce should be
the byword in the aviation industry. And if
international laws need to be changed, they
must be done. It could make the difference
between life and death.
Martin, CEO of Martin Consulting, an avia-
tion consulting firm, is to ensure that the con-
tracting states and airlines comply with its
standards and requirements, as defined by its
annexures and conventions. There are 17
ICAO annexures that deal with airport opera-
tions, air navigation services, accident investi-
gation, aviation law-making, etc. It is the
responsibility of contracting states to release
these. ICAOs core function can be seen in the
Global Safety Audit Ratings, which it releases.
However, pilot associations are saying
ICAO should lead from the front and have the
tools to do so. The absence of a clear interna-
tional coordination to avoid operations above
eastern Ukraine has now become tragically
obvious. To avoid a repeat, ICAO should be
better resourced and enabled to declare air-
space unsafe, says Jim McAuslan, general sec-
retary of the British Airline Pilots Association,
to Air Traffic Management, a magazine.
What ICAO does is provide a minimum
level of protection against human error, says
Lumba; individual nations are to provide an
additional layer if they so desire.
The most common directives are called
no-fly-zones. These are released by both the
military as well as the air navigation service
IL
AVIATION/
conflict zones
ICAOs role is
misunderstood. If one is
to find fault for the
downing of MH17, it is
Ukraine, national civil
aviation regulators and
individual airlines who
should take the blame.
Captain Shakti Lumba, operations
head, Nashwan Aviation Szc
There are 17 ICAO
annexures that deal with
airport operations, air
navigation services,
accident investigation,
aviation law-making, etc.
Contracting states should
release these.
Mark D Martin, CEO,
Martin Consulting
Whose job is it to give
advisories on air space?
The job of issuing
NOTAMs (Notice to
Airmen) falls on the
authority which operates
or manages air
navigation services. In
India, this falls on the
Airports Authority of India
and in some areas, on
the IAF, Navy and the
Army. The Directorate
General of Civil Aviation
has the mandate to issue
circulars that ensure
that airlines, state
governments and civilian
operators of aircraft
comply with safety
standards and
requirements, says
Mark Martin.
Safe Skies
30
August 31, 2014
why is the mastermind
behind the 2008
mumbai terror attack
denouncing acts of
extremism from
pakistans soil?
By Vishwas Kumar
HAFIZ SAEEDS
MODERATE
MAKEOVER
I
N a bizarre and seemingly sudden change of
heart, the 2008 Mumbai attack mastermind
Hafiz Muhammad Saeed has denounced
acts of terrorism in an interview to a
Pakistani newspaper. He was quoted in the
interview as saying: We were the first
organisation, which declared long ago that suicide
bombings and all acts of terrorism within Pakistan
remain against the tenets of Islam. Shariat forbids
such acts. Those who are destroying peace in
Pakistan are directly or indirectly working on for-
eign agenda.
Saeed was speaking as the head of the Jamaat-
ud Dawa (JuD), which is the charitable arm of the
banned terror group Lashkar-e-Toiba (LeT). He
made this statement in the context of Pakistan
Taliban (Tehreek-e-Taliban Pakistan, TTP) step-
ping up suicide attacks on Pakistans armed forces
and civilian targets inside Pakistan.
Saeeds sermon has security analysts wonder-
ing what his new gameplan is. Is he feeling shaky
that the new organisation, TTP, is emerging as the
more popular and powerful voice for Islamic caus-
es among Pakistani jehadists? And to think that all
this is happening beyond the Pakistans army pat-
ronage and control could be disconcerting for
Saeed, the founder of LeT.
That Saeeds mentor, protector and financer
remains Pakistans ISI (Inter-Services Intelli-
gence) is the worst-kept secret. But this could
change quickly, as Saeed is cornered through the
rise in terrorist attacks within Pakistan.
GLOBAL TRENDS/
terrorism
31
tures apply to non-Islamic nations as well.
Basically, Saeed seems to be a man riding a
tigerdoomed any which way. Thats what his
recent tweets indicate. He cannot criticize ter-
rorism, because he would then become a legit-
imate target of terror organizations like the
TTP. And if he doesnt talk against terrorism,
his current benefactors would go against him.
Saeed is, thus, using the reach of social
media to deliver his new approach strategies,
to re-orient and to remain relevant.
His actions were well calibrated to project
this new image. In July, he gave his first inter-
view to the BBC, and later he talked to Indias
freelance journalist Ved Pratap Vaidik.
The timing of the BBC interview showed
his urgency to get back on trackit was a
week after the US declared JuD a foreign ter-
rorist organization. This move freezes any
assets it has under US jurisdiction. The US
had earlier put the LeT in a similar category.
His position of authority among jehadists
is being challenged by the TTP, which doesnt
believe in the concept of Pakistan as a nation.
For the TTP, the Islamic cause is bigger than
the unity and integrity of Pakistan. And that
has brought the TTP in direct confrontation
with the Pakistan army.
Saeeds only option now is to become the
Pakistan armys unofficial spokesperson, giv-
ing lectures and sermons to educate the
jehadists against suicide bombings and ter-
rorism against Pakistan.
That is his opinion on attacks within
Pakistan. He remains quiet on whether his lec-
Saeed cant condemn terrorism because he
would then become a target of terror groups.
But if he doesnt talk against terrorism, his
benefactors would go against him.
BLOOD ON HIS HANDS
The ghastly November
2008 killings in Mumbai
were masterminded by
Hafiz Saeed
32
August 31, 2014
GLOBAL TRENDS/
terrorism
In the interview, Saeed lamented that US
was targeting his organization simply to please
India. America always takes decisions based
on Indian dictation. Now its imposing this
new ban because it needs Indias help in
Afghanistan, he said.
And the choice of BBC was because the
news channel has a huge reach within the
Indian sub-continent. Then he met Vaidik,
just to prove his credentials as a moderate
jehadi leader. The BBC journalist Andrew
North, who interviewed Saeed, later said that
he had tried earlier to speak to him but was
never granted permission. Vaidik also made a
similar comment.
Saeeds residence is heavily guarded by the
ISI and his actions are closely monitored. So it
can be assumed that the meeting with foreign
journalists was facilitated by the ISI. But why
would the ISI allow this?
T
herein lies the bigger picture. Most
analysts agree that the Pakistans army
has started fine-tuning and imple-
menting its strategy in preparation for the US
forces full withdrawal from Afghanistan at the
end of this year. Since Saeed and his terror
outfits are fully embedded within the Pakistan
armys strategic vision, all his moves needs to
be read and understood in this context.
One indication was the recent launch of
Operation Zarb-e-Azb by the Pakistan army to
flush out terrorists from their hideouts in
North Waziristan. This has been a long-stand-
ing demand of the Americans.
The idea, it seems, is to push all the mili-
tants, including the most dreaded ones, such
as TTP, Haqqani network, Al Qaeda and the
Islamic Movement of Uzbekistan into Afghan
territory. With the US army already in draw-
down mode and the Afghan military mainly
focused on protecting big cities, the
Waziristan terrorists are easily slipping into
unmanned areas of Afghanistan.
S
ameer Saran, a noted defence analyst in
his recent column in the think-tank,
Institute for Defence Studies and
Analyses (IDSA) said: ...many of the jihadists
who are being expelled or pushed out of
Pakistan are not going to face any real prob-
lem in Afghanistan. In the process, the Pakis-
tanis are hoping to win brownie points for
having launched this much awaited operation
and at the same time keep their larger game-
plan of keeping their strategic assets intact.
The analyst further observed that the
jihad factory will continue to operate, but
without the jihadists enjoying any of the
autonomy of action that they had started tak-
ing for granted.
No wonder, Saeed is the most enthusiastic
supporter of Operation Zarb-e-Azb (literally,
Sword of Prophet Muhammad). In a series of
tweets lasting several days, he complimented
the army for the operations and also took great
pains in explaining why they were forced to act
against their own brothers.
Using the hashtag #ZarbeAzb, he said in
his tweet: US direly wanted an army opera-
tion in NW upon its dictation. However, Pak
Army has launched #ZarbeAzb keeping own
security interests in focus.
It remains to be seen if the new-improved
Saeed can survive this critical phase.
AN AFFAIR TO
REMEMBER
Saeeds meeting with
Vaidik led to a bushfire in
the Indian media and
political corridors
The LeT founders
actions were well
calibrated to project a
new image. In July, he
gave his first interview to
the BBC, and later spoke
to Ved Pratap Vaidik.
IL
33
much is being made out of the means for acquiring ownership of
the daily. it is nothing but plain business restructuring
By Ranjeev C Dubey
CONTROVERSY/
national herald/opinion
T
he awareness that our judici-
ary has time and again res-
cued the nation from impend-
ing doom clouds our vision
when it comes to gross mis-
carriages of the due process
that routinely litter its path. The much report-
ed National Herald case, in which Congress
President Sonia Gandhi, Rahul Gandhi and
several others are being prosecuted for con-
spiracy, criminal breach of trust, misappropri-
ation and cheating is one of the latest exam-
ples of a criminal prosecution launched on
the flimsiest of basis.
The Gandhis have been accused of
offenses that attract a seven-year jail
sentence but the underlying facts only
reveal, what appears to me, an unex-
ceptional case of business restruc-
turing. This is how it goes.
Three years back, the
Congress had decided that
they wanted to revive a newspaper
deeply loved by Jawaharlal Nehru. National
Herald was bankrupt despite large loans, and
the party didnt think that the revival plan was
best executed riding on the back of a political
platform. Thats a fair assumption with which
at least the income tax department agreesit
has issued notice to the Congress threatening
to take away its charitable status because the
party gave away money (as a loan) to a newspa-
per airing its political views.
CONVOLUTED
CRIMINALIZATION
34
August 31, 2014
The magistrate thought that political
donations are public money entrusted to
political parties and using it to publish its
political view through a not for profit com-
pany is a criminal breach of trust. That is
indeed a strange notion. Political donation
comes without strings and there is no
entrustment. Besides, I will take any politi-
cians invitation to jump the public money
hoop only after these righteous rhetorical
raconteurs have opened their accounts to the
Right to Information Act.
Next, the Congress assigned the loan at a
cut price to a purpose-registered not-for-
profit company and squared the accounts. If
you have ever restructured a sick company, I
am sure you have sold a bad debt for a song
too. The magistrate is displeased that the debt
was sold to a company of which the Gandhis
are shareholders. It escapes me how anyone is
better qualified than Nehrus descendants to
pursue his ideals. The magistrates chief
apprehension lay in the ostensible value of
these properties regardless that the company
was not for profit. She assumes that the
accused will convert the company back to a
normal for profit one and misappropriate
the money. That, I believe, is akin to prose-
cuting someone for purchasing a car because
it could kill someone on the road someday.
S
o what about criminal misappropria-
tion? In the magistrates view: if com-
pany A acquires a debt from the credi-
tor of company B and converts it into equity,
then the directors of the holding company A
have acquired the properties of the subsidiary
company B. This automatically means that
the subsidiarys properties have been misap-
propriated by the directors of the holding
company whose personal kitties are thus
filled. Thus, at a stroke, the magistrate has
lifted the corporate veil without legal rea-
son, obliterated the distinction
between shareholder and professional
non-shareholder director, assumed
the assets of a subsidiary company are
the personal property of the directors
of a holding company, and launched a
prosecution based on an apprehension
of misappropriation that may occur
at some time in the uncertain future.
Finally, the magistrate believes this mis-
appropriation is dishonest because the con-
version of debt to equity caused a wrongful
loss to National Heralds shareholders.
National Herald is a registered company. If
you get shareholders approval, company law
allows you can convert debt into equity.
Lawyers restructuring businesses commonly
render such advice. I have heard of minority
shareholders approaching the Company Law
Board against dilution, but a third party
politician approaching a criminal court?
As a lawyer, I am alarmed at the lack of
gravitas and deliberation with which sum-
mons have been issued in this case, as I am
with so many others. I am even more alarmed
when jabbering TV heads talk trash and air
prejudice in the name of considered opinion
till I, like Jim Morrison, am ready to cancel
my subscription to Indias resurrection.
In the main, I am overwhelmed by the idea
that some of my hard earned tax payers
money will be used to adjudicate on this base-
less prosecution that will doubtless end in a
whimper of a discharge.
The author is managing partner of the
Gurgaon-based corporate law firm N South
IL
35
Anil Shakya
F
OR years, central and state gov-
ernments, led by the Congress and
its allies or BJP and its partners,
did little to curb illegal mining.
The judiciary and executive gave
conflicting signals or took deci-
sions that curbed the symptoms but not the
malaise. In the chaos, the demand for a CBI
probe by the MB Shah Commission became
muted. Although PIL activist and member of
the Aam Admi Party, Prashant Bhushan, filed
a case in Supreme Court this January, there
was little movement.
The fact is that the Congress and BJP, their
coalition partners, and even the unallied polit-
ical parties have vested interests that make
them shy away from a CBI investigation. For
example, the BJPs Odisha unit put the states
mining companies brazenly operate illegally,
with central and state governments being
too willing to leave the field open to them
By Vishwas Kumar
ENVIRONMENT/
mining in odisha
chief minister, Naveen Patnaik, in the dock for
abetting illegal mining. It latched on to the
Shah Commission recommendation for a CBI
probe. Later, its demand became muted,
as Narendra Modis blueprint is to accelerate
infrastructure projects, including in the
mining sector.
Says the BJP Odisha state president, KV
Singh Deo: We have repeatedly demanded a
CBI probe but the state has been reluctant. We
have written to the governor, requesting him
to order the same. But when quizzed why he
didnt up the ante after his party came to
power at the center, Deos reply was that the
matter is in the court and sub-judice.
Although the Congress set up the Shah
36
August 31, 2014
THE
BLACK
TRUTH
37
Commission, it had little interest in pursuing
the latters recommendations. The reason: one
of the culprits behind illegal mining was none
other than A Raja, the main accused in the 2G
scam, who was the environment minister
(independent charge) between May 2004 and
May 2007. Obviously, political parties like
Odishas BJD would wish to have the investi-
gations under its jurisdictionstates chief vig-
ilance officerather than by centers CBI.
The judiciary imposed a ban on mining in
several states and regions and, later, removed
some of them. In April 2014, the Supreme
Court lifted the ban on iron ore mining in Goa,
but capped annual production at 20 million
tons a year. The apex court imposed other
conditions, which included that the state will
not give mining leases to companies that were
given extension after 2007 despite the com-
pletion of the 20-year renewal periods. It
upheld the earlier decisions by the center and
Goa government.
The business community reacted against
the bans. It said the judicial and other curbs
impacted growth. In his budget speech, Arun
Jaitley agreed: It is my governments inten-
tion to encourage investment in mining sec-
tor. The current impasse in mining sector
will be resolved expeditiously. Changes, if nec-
essary, in the MMDR (mining) Act would be
introduced to facilitate this.
Meanwhile, illegal mining continues.
gg2.net
permissions (TWPs). In July 2005, environ-
ment minister Raja passed an order that sev-
eral mining projects, which had expanded
their operations without the requisite green
clearances, could be granted TWPs and a two-
year grace period to get them. This proved to
be a loophole in the existing policy, which stat-
ed that miners had to get the environment
clearances before expanding their capacities.
As international prices of iron ore zoomed
between 2008 and 2011, thanks to huge
demand from China, Indian exporters earned
super normal profits of 100 percent and
above. Miners went ahead with expansion
even after the two-year grace period. The Shah
Commission found that of the 192 mining
leases in Odisha, 94 did not possess the
required environment clearances. Of the lat-
ter, 55 leases had not got them for almost a
decade. The commission estimated illegal
mining of over 50 million (5 crore) tons of iron
and over 42,000 tons of manganese, which
resulted in a loss of `60,000 crore.
In November 1994, just after it announced
the new environment policy, the ministry
issued guidelines to the chief secretaries of the
states and union territories, which stated that
if mining projects were located in forest areas,
or forest area was diverted for non-forest uses,
they required two separate clearances under
the Forests Conservation Act (FCA) and
Environment Protection Act. The rules added
that a project would be deemed to be cleared
only after clearance(s) from both angles.
Later, in May 1998, TN Seshan, the envi-
ronment secretary, who went on to become
the chief election commissioner, asked NK
Panda, chief secretary, Odisha, to investigate
miners, who had violated FCA requirements,
so as to fix the responsibility on the persons
responsible and that such violations are not
continuing any further. However, as the Shah
Commission noted: In Odisha, no such direc-
tions were followed for years together in
almost all the leases and hence, large-scale
illegalities have been committed by non-com-
pliance of the provisions of existing statutes.
For instance, between 2004 and 2012,
mining lessee BK Mohanty, power of attorney
holder Deepak Gupta, and directors of Deepak
Steel and Power carried out illegal mining in
Barbils Uliburu forest in Odisha in
The Shah Commission pegged losses from it at
around `100,000 crore in two states, Odisha
and Goa. According to the report, the reasons
that facilitated illegal mining, apart from the
China factorprices of iron ore shot up 20
times in 2008-11 due to demand in China
included lack of effective enforcement, and
absence on the part of the concerned officers
to effectively curb the menace of illegal min-
ing. It added that there was a nexus between
mining mafias, and central and state govern-
ments. There were systemic failures too.
S
o, what is the modus operandi of the ille-
gal miners? How do the ministers and
bureaucrats abet their activities? How is
it that India reached a state where, as Shah
Commission noted, there is enormous and
large-scale multi-state illegal mining having
several pernicious evil effects on the national
economy, good governance, public function-
aries, bureaucracy, public order, and law and
order? How did these activities encourage
corruption, mafia and money power?
One of the routes to legally continue ille-
gal mining was through temporary working
Mining companies have been operating for
decades without proper clearances. In
Odisha alone, of the 192 mining leases 94
did not possess the required clearances.
38
August 31, 2014
ENVIRONMENT/
mining in odisha
connivance with local authorities. During this
period, the company extracted over 40 lakh
tons of iron ore and 610 tons of manganese
ore, estimated at `2,000 crore.
T
here were other ways in which the
state and central agencies encouraged
illegal mining. These included the
practises of deemed extensions and deemed
refusals. The former allowed miners to con-
tinue mining after the end of their lease peri-
ods. The deemed extension clause was meant
to deal with contingencies; it kicked in only if
there were genuine administrative delays in
lease renewals. However, the exception was
turned into a rule. The miners wished to avoid
a complex process to seek fresh clearances and
no-objection certificates. In collusion with the
state and local authorities, they operated on
deemed extension basis for years and decades.
The Shah Commission found that of the
341 operational mines in Odisha, 215 worked
under deemed extension clauses. The leases
had expired more than two decades ago in the
case of 15 mines, 15-20 years ago in the case of
17, 10-15 years ago in 38, 5-10 years ago in 69
mines, and less than 5 years ago in the remain-
ing ones. After examination of about 375 min-
ing leases in States of Odisha, Goa and
Jharkhand, it is observed that in very few
mines, leases have been renewed after the
1994 policy, stated the commissions report.
Like the deemed extension clause, state
governments misused the deemed refusal one.
Yet again, the latter was for contingencies; the
state could give TWPs to miners in case their
clearances from the environment and mining
ministries were delayed for no fault of the
operators. Worse, the two ministries condoned
illegal mining extractions under the deemed
refusal clause by waiving off criminal prose-
cutions, recoveries and seizures against the
illegal miners.
The Indian Bureau of Mines, a department
under the mining ministry, allowed modifica-
tions in the original mining plans in the case of
85 leases of iron and manganese ores. Of
these, the plans were changed several times for
30 companies. In 53 cases, the mining plans
were modified with retrospective effect. This
would mean that without a prior approval, the
lessee increased the production of iron ore for
some purpose, may be, export and that has
been tried to be legalized by IBM, said the
commission.
Essel Mining and Industries annual pro-
duction was changed retrospectively from
200405, although it did not have an environ-
ment clearance. It would be in the right con-
text to state here that the excess production
has been postfacto rectified by the Controller
(IBM). This post-facto approval is also an
illegal ratification of the illegalities committed
by lessee. Such types of retrospective
approvals have aggravated the illegal mining
which was rampant during that period, stated
the commission.
In his budget speech, Jaitley asserted that
apart from encouraging mining, the govern-
ment will promote sustainable mining prac-
tices without sacrificing environmental con-
cerns. If the finance minister has to achieve
these twin objectivesfind a balance between
development and environmenthe does not
need to change the existing laws. His govern-
ment has to only follow them stringently.
THE KING IN CAHOOTS
Former Environment
Minister A Raja
(2004-2007), who helped
corporates win mining
contracts in violation of
norms; (facing page) the
mining ban in Goa has
upset the mining lobby
39
IL
RIGHTS/
death sentence
40
August 31, 2014
J
ustice delayed is justice denied.
This was all too evident on
January 21, 2014, when the
Supreme Court (SC) in the
Shatrughan Chauhan vs Union
of India case commuted the
death sentence of 15 convicts
on the sole ground that their mercy pleas were
rejected by President Pranab Mukherjee after
an unacceptable, inordinate delay, ranging
from five to 15 years. Surprisingly, the verdict
evoked serious debate on what is inordinate
delay and whether a death row convict should
suffer incarceration while waiting for a deci-
sion from the president. It was also a severe
indictment of the home ministry which han-
dles mercy petitions and forwards them to the
president for his approval or rejection. In yet
another case of delay, in February, the SC com-
muted the death sentence awarded to the three
assassins of Rajiv Gandhi.
MAMMOTH EXERCISE
Seeing the increasing number of such cases, a
concerned Law Commission in May called for
a reassessment of the death penalty and initiat-
ed a mammoth exercise to ascertain the views
of all the stakeholders on the efficacy and justi-
fiability of the death sentence, which is termed
by some as blood for blood jurisprudence, and
LORD,
HAVE
MERCY
a debate has been raging over the inordinate delay in deciding cases of
death penalty. is it fair for a convict languishing in jail for years?
By Rakesh Bhatnagar
ignore it, he had told this correspondent then.
Justice Bhagwati had observed in 1980 that
judges cant be blood-thirsty. Death sen-
tence has a certain class complexion or class
bias inasmuch as it is largely the poor and the
downtrodden who are the victims of this
extreme penalty. We would hardly find a rich
or affluent person going to the gallows. Capital
punishment is a privilege of the poorit is the
poor, the sick, the ignorant, the powerless and
the hated who are executed, he stated.
Earlier in 1979, Justice VR Krishna Iyer in
had also observed, ....Who, by and large, are
the men whom the gallows swallow? The
white-collar criminals and corporate criminals
whose wilful economic and environmental
crimes inflict mass deaths or who hire assassins
and murder by remote control? Rarely.
SERIOUS DELIBERATION
In May this year, when Law Commission chair-
man AP Shah issued a detailed questionnaire,
he sought the views of the legal fraternity, stu-
dents, academicians, NGOs and individuals for
a possible legislative deliberation on retaining
or deleting capital sentence from the statute.
(lawcommissionofindia.nic.in).
The foremost query of the commission was:
Are you in favour of retaining capital punish-
ment on the statute book? If yes, is it because
it acts as a deterrent for future crimes,
because retribution is the most effective
means of achieving justice or so that convicts
are never released back into society as they
may pose a threat in future. Other reasons
include lessening the burden on jail and an
accused not deserving reform.
The commission further asked that in case
a respondent is opposed to death penalty and
wants its abolition, is it because he feels that
there is no conclusive proof that capital pun-
ishment acts as a deterrent for future crimes.
Or is it because the sentence imposes hardship
and trauma for the convicts family, who may
have had no role in the crime? The commis-
sion also asked whether capital punishment
deprives people of the opportunity to reform
or its imposition is not free from risk as there
is a chance of innocent people being sentenced
to death. It inquired if another reason to ter-
minate death sentence was because it was
by others as the only deterrence.
While the death sentence has been abol-
ished in 140 countries, its constitutional validi-
ty in India has always been under contention.
This was evident in 1980 when Justice PN
Bhagwati registered a strong protest against it.
Judicial imbalance is also evident when some
gruesome cases are left out of the rarest of
rare cases which call for death sentence.
Former Chief Justice of India (CJI) AM
Ahmadi had called for a stay on capital punish-
ment until finality was arrived as to what con-
stitutes the rarest of rare cases. In fact,
between 2008 and 2013, there was an unwrit-
ten moratorium on the death sentence.
Later, another CJI, YK Sabharwal, who, in
2004 had awarded death sentence to a Kolkata
security guard, Dhananjoy Chatterjee, for rap-
ing and murdering a Gujarati teenager, Hetal
Parekh, in the housing society where he
worked, strongly felt that capital punishment
must be abolished. So long as it exists on the
statute as an alternate sentence, the court cant
41
WATCH OUT!
Section 303 of the
Code of Criminal
Procedure provides
death sentence for the
following offences:
Treason (Section
121)
Abetment of mutiny
(Section 132)
Perjury resulting in
the conviction and
death of an innocent
person (Section 194)
Threatening or
inducing any person to
give false evidence
resulting in the
conviction and death of
an innocent person
(Section 195A)
Murder (Section 302)
Kidnapping for
ransom (Section 364A)
Dacoity with murder
(Section 396)
Anthony Lawrence
too judge-centric and depended on a judges
personal belief against or in favour of this harsh
punishment. The commission raised another
query based on what Justice Bhagwati and Jus-
tice Iyer had thought, and said: Economically
and socially backward groups will always have
a greater chance of being subjected to capital
punishment than the rich. Further, it asked:
Is capital punishment a form of state-spon-
sored violence?
REPEAT RAPISTS
The commission expanded the discussion by
referring to the Criminal Law (Amendment)
Act, 2013, which introduced capital punish-
ment for the repeat offence of rape (Section
376E IPC). It asked respondents: Should cap-
ital punishment extend to non-homicide
offences? It may be inferred that the commis-
sion wanted to know whether the extreme
penalty could be awarded to a rapist who was
not involved in a similar offence in the past.
It asked questions on different classifica-
tions of murder. Is the crime of murder as
severe and abhorring as an act of terrorism?
Is it possible to divide murders into different
categories for the purpose of sentencing, such
as murders punishable with death and mur-
ders punishable with life imprisonment?
What sort of murders would you include in
the category of punishable with death?
The commission also sought views on
circumstances, where life imprisonment was
adequate punishment for murder, but under
aggravating circumstances, could be awarded
death penalty. It was also anxious to know if
offences punishable with death sentence could
be divided into different categories, such as ter-
ror and non-terror offences. If the answer was
in the affirmative, should capital punishment
be retained only for terror offences? It also had
queries about the current mode of execution
hanging until death. If there was no serious
problem with this mode, please indicate why,
the commission asked. And, could there be any
other preferable mode of execution?
It also raised a politically sensitive issue:
Should mandatory guidelines be laid down for
the governor and president to exercise powers
of granting mercy in death penalty cases?
While the center strongly contests fixing a time
limit for disposal of a mercy petition by the
president or the governor, the SC has ruled that
inordinate delay violates a convicts right to life
and equality, besides subjecting him to double
jeopardyundergoing imprisonment while
waiting for execution. It had further said that it
expects constitutional authorities to decide a
mercy plea within reasonable time. Right to
seek mercy is a constitutional right and not at
the discretion or whims of the executive, it
observed and ruled every constitutional duty
must be fulfilled with due care and diligence.
The lives of others depend on it, after all.
Shahs questionnaire on the
death penalty has sought
views of lawyers, students,
NGOs, academicians and
individuals for a debate.
AP Shah
Chairman, Law Commission
As a Supreme Court judge,
Bhagwati had registered a
strong protest against the
death penalty and said that
it had a strong class bias.
Justice PN Bhagwati
Former chief justice of India
Iyer had observed in 1979
that death sentences hardly
applied to corporate and
white-collar criminals or
those who hired murderers.
Justice VR Krishna Iyer
Former Supreme Court judge
IL
42
August 31, 2014
RIGHTS/
death sentence
13 years after phoolan devi was shot dead in the heart
of delhi, her killer is convicted, bringing to a closure yet
another case arising from caste animosity
By Ramesh Menon
CRIME/
phoolan murder/conviction
43
HIRTEEN years after Sher Singh
Rana, 38, pumped five bullets into
Phoolan Devis head and stomach on
a balmy afternoon outside her official resi-
dence on Ashoka Road in Delhi on July 25,
2001, he has been found guilty of murder
by a trial court. Hearing the verdict in a
packed courtroom, Rana demanded to
know why he was convicted, while
the other 10 accused were let off.
The judge told him that his
conviction was on
IMMORTALIZED ON
SCREEN
Poster of Shekhar
Kapur-directed movie,
based on Phoolans life
Vikram Mallah became her new lover.
Legends swirled around their romance and
their fight against the upper castes.
In mid-February 1983, she publicly sur-
rendered to the government in a high-voltage
ceremony, making it to the cover of print
media all over the world. It was NK Singh,
the superintendent of police in Bhind, who
had protracted negotiations with her to give
up arms. Dressed in a khaki shirt and
trousers, Phoolan, who was less than five feet
tall, marched to the ceremony with a .302
caliber rifle slung across her shoulders, while
a dagger hung at her waist. A red bandana
tried to hold her disheveled hair in place. She
surrendered her rifle to Madhya Pradesh
chief minister Arjun Singh, while hundreds
of flashbulbs popped. She marched to jail
proudly to spend 11 long years behind bars.
She had set conditions for her surrender: her
family had to be taken care of by the govern-
ment and none of the dacoits who surren-
dered would be sentenced to death.
CATAPULTED AS MP
And in a calculated move, Uttar Pradesh
chief minister Mulayam Singh Yadav decided
to capitalize on the euphoria raised by the
Mandal Commission empowering the lower
castes. He withdrew all 55 charges against
Phoolan, which included 22 of murder. She
was released from jail and made the
Samajwadi Party Lok Sabha candidate from
Mirzapur in 1996. She won. And won again
PAGE OUT OF
THE PAST
The moment of
Phoolans surrender
in 1980
the basis of evidence and he was free to
appeal in the high court.
Ostensibly, he had taken revenge for the
killing of 22 high-caste Thakurs by Phoolan
in Behmai in 1981. Phoolan, dressed in her
fatigues, had led other dacoits there in search
of the Thakur duo of Lala Ram and Sri Ram
who had led her gangrape after she resisted
their advances. She got the Thakurs lined up
and shot them at point-blank range. This
massacre by Phoolan, who belonged to the
lower Mallah caste, sent waves of shock and
outrage. There was also silent admiration of
her revenge, as lower castes singed under
oppression. Many saw her as a revolutionary
out to avenge the atrocities against the lower
castes. At that time, Phoolan would hardly
have imagined how this caste angularity
would define her life in the decades to come.
FIGHT FOR JUSTICE
Rewind to the past and you will see why a
shy, uneducated Phoolan took to arms. It
started in the hamlets of Sheikhpur Gurha in
Jalaun on the banks of the Yamuna river.
Phoolan was a little girl protesting against
cousin Maiyyadeen who was eyeing their
land. She found that the cops were not on her
side. Taking up arms to fight for justice
seemed the only recourse left to her. In 1979,
she was among the dacoits in the dreaded
Chambal ravines with a rifle slung over her
shoulder. She had also deserted the husband
she had acquired as a child. In the ravines,
44
August 31, 2014
CRIME/
phoolan murder/conviction
JUSTICE DELAYED,
NOT DENIED
(Above) Sher Singh Rana,
convicted in the murder of
Phoolan Devi
in 1999. She was the new face of empower-
ment of the lower castes. They forgave her for
all that she had done.
And as she started living on upmarket
Ashoka Road as a member of parliament, a
far cry from the tumultuous days she had
spent in the dry ravines, dodging police
encounters, her influence grew.
DEVIOUS MIND
According to the police, Rana was hatching a
plot to kill her for a long time. He had
checked into a guesthouse near Chittaranjan
Park, close to where Phoolan lived in 2000.
He supposedly did a recce, tracing her move-
ments in an attempt to kill her, but failed. A
year later, he charted a systematic plan by
getting close to Uma Kashyap, a close associ-
ate of Phoolan, so that he could get access to
her residence. A few days before the murder,
in a carefully crafted move to ensure that
Rana had an alibi, his father withdrew his
surety in a case involving his liquor shop,
leading to a court ordering Ranas arrest.
Rana sent his friend, Shravan, to imperson-
ate him and go to jail.
On July 25, 2001, Rana and three of his
aides, reached Phoolans house around 10.30
am when she was getting ready to go to par-
liament. Rana offered to drop her and she
agreed. After doing so, he came back to her
residence and waited for her. When she
returned home for lunch, he shot her with his
country weapon in the head. His accom-
plices, meanwhile, shot and injured her per-
sonal security officer and escaped to
Hardiwar. Two days later, Rana confessed,
saying he killed Phoolan to avenge the
Behmai massacre and surrendered. Ironi-
cally, he became a legend among the high
castes in Uttar Pradesh, who have since cam-
paigned for his release.
The police soon figured out that Rana was
no ordinary criminal. On the morning of
February 17, 2004, Rana, along with Sandeep
Rana, an imposter, walked out of the jail pos-
ing as a handcuffed criminal and cop respec-
tively being taken to court. Sandeep charged
Rana Rs 6 lakh to work out the escape.
First, Sandeep entered jail posing as
Ranas advocate under the name Pradeep
Thakur. Then, on the fateful day of the sensa-
tional jailbreak, Pradeep came into Tihar Jail
dressed as a cop impersonating Arvind, a
constable from the Delhi Armed Police, as
Rana was to be taken to a Haridwar court.
He did the necessary formalities like filling in
a form, submitted a fake warrant, collected a
diet allowance of `40, handcuffed Rana and
led him to a waiting autorickshaw outside
the jail. It dropped him at a bus terminal,
from where Rana went to Ghaziabad and
then, Ranchi. He managed to secure a pass-
port in the name of an assistant commission-
er of police from Delhi and flew to Bangla-
desh. From there, he went to Dubai, Iran and
Afghanistan.
Meanwhile, the special cell of the police
kept looking for him and waited for him to
come to Kolkata to renew his passport. When
he did, they nabbed him. He was back in
Tihar where he was closely guarded, as the
police knew he would try to escape again.
What eventually nailed Rana was the tes-
timony of Balinder Singh, Phoolans personal
security officer, along with forensic reports of
Ranas fingerprints on the pistol used to mur-
der Phoolan. The court also relied on the tes-
timony of Ranas friends to establish that the
Maruti car used in the crime was registered
in his name. Strong forensic and circumstan-
tial evidence ensured Rana did not get away.
And so, the enduring legend of the Bandit
Queen lives on.
There was also silent
admiration of her revenge,
as lower castes cowered
under oppression. Many
saw her as a revolutionary
out to avenge the atrocities
against the lower castes.
45
IL
46
August 31, 2014
Her Cry for Justice
SANGEETA MADAN, an additional judge from Gwalior in Madhya Pradesh
rocked the judiciary when she recently quit saying she could no more
tolerate the continuing sexual harassment by a high court judge. India
Legal has the letter she wrote to the Chief Justice of India
RM Lodha which we have put on our website: www.indialegalonline.com
as the country needs to know. Ironically, Madan was heading the Vishaka
Committee against sexual harassment. But she could not protect herself
and found it best to resign from the judiciary as the only way of escape.
The Supreme Court Bar Association passed a resolution demanding that
the issue be thoroughly investigated. Its president Pravin H Parekh
forwarded the resolution to the CJI asking for immediate action.
By India Legal Bureau
MISPLACED SENSE OF
JUSTICE
Madhya Pradesh High
Court Bench in Gwalior,
which is witness to the
unfortunate turn of
incidents involving a
senior judge
COURTS/
sexual harassment
A WOMANS PLIGHT
Sangeeta Madan, in her letter to the chief jus-
tice of India, describes the circumstances that
forced her to resign to escape sexual harass-
ment. Excerpts:
The constitution of India gives us equal
rights and the democracy in this country is
upheld by its institutions, with judiciary being
the prime. The citizens have faith in our judi-
cial system and therefore seek legal redressal
when anything goes wrong. However, what
happens when one of the members of the judi-
ciary itself becomes a victim of legal excesses
and is summarily disposed off without any
hearing, reason, chance to represent or be
granted a right to be heard. We hear a lot of
debates and discussions on gender neutrality
and that merit being the sole criteria for career
advancement and the system being sensitive
and responsive to the needs of women. While
in theory these platitudes does make interest-
ing and disarming debating points, the reality
is much stark, ugly and is extremely challeng-
ing for a woman to break the glass ceiling in
pursuit of her career
I practised law for fifteen years at Delhi
Courts and got selected at 2nd position in the
competitive examination of Madhya Pradesh
higher judicial services at district entry level in
2001 (direct recruitment from bar) with the
great support and encouragement of my fami-
ly and loving husband, Mr Sanjay Madan. I
was posted at Gwalior. My husband, a success-
ful professional in his own right, is one of the
leading architects of Delhi and is working in a
well-established corporate house. To be with
us, he used to regularly commute from Delhi
to Gwalior on every Friday and stayed till
Monday and at times beyond. He sacrificed his
own comforts so that I could pursue my career,
which was also his dream. God had given me
an ideal family and I was the happiest person
on earth.
I took training under the guidance of
Justice DK Paliwal, the then district judge.
After analyzing my performance and dedica-
tion during my training period, the Honorable
Justice DK Paliwal recommended me for the
regular posting. I was posted as the VIIIth
additional district and session judge at
Gwalior in October 2012...
47
48
August 31, 2014
Then, in the month of April 2013, I was
appointed as the chairperson of District
Vishaka Committee and further analyzing my
excellent performance, sincerity, honesty,
integrity, the Honorable High Court of
Madhya Pradesh on the report of the then dis-
trict judge (vigilance & inspection) assigned
me additional charge of special judge under
MP Dacoity Vyaparan Prabhavit Kshetra
Adhiniyam in the same year, in May 2013... I
understand that possibly my annual confiden-
tial report of January 2014 was excellent and
outstanding.
Thereafter, in the end of March 2014,
new district judge Kamal Singh Thakur was
transferred to Gwalior. By this time I had
completed approximately two years and eight
months in the judiciary. During this period,
the administrative judge, Justice S Gangele
met me at various seminars and meetings and
like my other subordinate colleagues I also
showed equal courtesy. Suddenly he started
showing more than normal interest in my
work and gradually started passing colored
remarks on me. One of such incident is that on
the occasion of marriage ceremony of a judi-
cial officer on 22.2.2014, Justice Gangele
passed a remark on me in the presence of my
16 year old daughter. Sangeeta, you have an
excellent work performance but you are more
beautiful than your work. I do not even want
to blink my eyes as he stared at me from top
to bottom and then put his hands on my back.
My 16-year-old daughter was shocked by this
strange gesture. I expressed by all possible
means that this gesture was unwelcome and
with tears in my eyes I immediately left the
party as I felt that his conduct was most shock-
ing and disgraceful. I just wanted to avoid
making a scene at that time and wanted to
retrieve myself from the troublesome and
awkward situation.
Thereafter, Justice Gangele sent many
messages to me through district registrar,
Naveen Sharma JMFC for meeting him at his
bungalow. Given the previous incident, and
since I learnt that Justice Gangele used to live
all alone in his house, I made excuses to avoid
meeting him at his bungalow.
Before this, on 8.12.2013 or 9.12.2013, the
wife of CJM Gwalior, Rajendra Chaurasia
called me on my landline telephone and told
me that Justice Gangele is eager to see me per-
form dance on an item song at ladies sangeet
on 10.12.2013 on his 25th marriage anniver-
sary. I was bewildered at such a preposterous
request but keeping in mind the hierarchy and
situation at hand, I politely avoided the same
on the pretext that I had already organized a
childrens party on 10th December at my resi-
dence, on the occasion of birthday of my
younger daughter.
I could smell and sense foul and malicious
intentions of Justice Gangele. Call it a
womans intuition but I was very cautious and
disturbed. But with several changes in the
working environment and enormous judicial
work, I decided to keep my attention solely
towards my work to help me get over this bad
phase of life, and thus, I ignored him and kept
doing my work.
Thereafter, on 11th December 2013 under
obligations of official protocol I went to the
25th marriage anniversary party, but given his
past conduct, I did not wish to go alone, so I
decided to go along with my daughters. There
Madan, in her letter to the CJI, claims that
Justice Gangele on one occasion sent a
request that he wanted to see her perform
a dance on an item song.
MADAN had tried to
approach the offices of both
Chief Justice of India RM
Lodha and Justice AM
Khanwilkar, chief justice of
the Madhya Pradesh High
Court to report of the
misconduct of Justice
Gangele but could not meet
them. But after the media
outburst, Justice Lodha
forwarded the complaint to
Justice Khanwilkar.
Thereafter, a committee of
two judges comprising
Justice AK Singh and Justice
SR Waghmare was formed
and asked to submit a report
on their findings. The
question being asked is
whether a judge could be
held culpable for his criminal
acts as a private individual or
whether he can claim
privileges.
Update to the case
COURTS/
sexual harassment
Anthony Lawrence
IL
I) The Executive Committee has perused the
letter dated 5th August, 2014 addressed by
former ADJ, Gwalior, and the resolution-cum-
proposal of the Ladies Bar Room/Welfare &
Grievance of Women Lawyers Sub-Committee
meeting dated 5.8.2014. The Executive
Committee of the SCBA is prima facie of the
view that this amounts to sexual harassment
and needs to be thoroughly and efficaciously
probed. The Committee is very much dis-
turbed and anguished by the statements con-
tained in her representation. The Executive
Committee resolves to recommend to the
Honble Chief justice of India requesting him
to take immediate action both departmental
as well as directing filing of FIR. A proper and
effective action ought to be taken.
II) The SCBA will render all assistance which
she requires to pursue her representation or
follow up action before the Court or before any
other authority.
49
Justice Gangele found an opportunity to come
close and whispered to me that he missed the
opportunity of viewing a sexy and beautiful
figure dancing on the floor and that he is des-
perate to see the same. ...I felt ashamed of
such minds reaching positions of authority.
But to avoid any controversy, I immediately
left the party with my daughters.
In April, 2014, the farewell party of
Honourable Justice Saxena was organized by
district judiciary, Gwalior, and all the honor-
able justices were invited. At dinner Justice
Gangele was continuously staring at me; how-
ever much I avoided, I always found myself
under his constant gaze, and thus, before he
could make any advances, I left the party with
my children.
On not paying any heed to the... advances
and for not fulfilling the illegal and malicious
aspirations of Justice Gangele, it appears that
he got agitated. Thereafter, as soon as new
district judge Kamal Singh Thakur and new
district judge (inspection) Rajeev Sharma
joined Gwalior in the month of April 2014
after their transfers, Justice Gangele started
harassing me through both of above... district
judges including district registrar Naveen
Sharma, JMFC.
Not only this, on the instructions of Justice
Gangele, the inspecting district judge (inspec-
tion) Rajeev Sharma and district judge Kamal
Singh Thakur started visiting my court with
an unusual frequency regularlyhourly, and
at times within a span of minutes, after start-
ing of court, even before 2 minutes of lunch
time, 1 minute after lunch time, 5 minutes
before rising of the court but at all instances
no fault could be found, rather I was on the
chair doing judicial work...
Thus it became apparent that the reason
for all this unnecessary harassment being
inflicted by my own senior on me, was to
somehow break my resolve, and make me
succumb
PAREKH URGES FIRM ACTION
A letter from Pravin Parekh, president,
Supreme Court Bar Association, to Chief
Justice of India RM Lodha, contained the
resolution that the executive committee of the
Bar Association passed in its meeting on
August 5:
Cast away
crimes against
marginalized
sections have only
spiked over the
years, but laws to
protect them are
still inadequate
By Vishwas Kumar
SOCIETY/
sc/st atrocities
In May this year, Nitin
Aage, a 17-year-old Dalit
boy, was brutally killed
and hanged from a tree,
allegedly by three men of
the Maratha community
in Kharda village of
Ahmednagar district,
Maharashtra. His crime?
He had dared to fall in
love with an upper caste
girl in his school. This
dusty village, located 330
km from Mumbai, had
no previous history of
caste violence, but the
divide between the upper
and lower castes was
rigidly enforced here.
50
August 31, 2014
Anthony Lawrence
A
AGES case is not an isolated
one. It is part of spiralling vio-
lence against the Dalit commu-
nity. The figures bear this out.
National Crime Records Bur-
eau (NCRB) statistics reveal that in 2011,
crimes reported against Scheduled Castes
(SCs) numbered 33,719, in comparison to
32,712 in 2010, a 3 percent increase.
Similarly, there were 673 cases of murder of
SCs in 2011, as compared to 570 in 2010, an
increase of 18.1 percent. Uttar Pradesh (UP)
leads with 42.5 percent here, followed by
Madhya Pradesh at 14.7 percent. Dalit women
were especially vulnerable. In 2011, 1,557
cases of rape of SC women were reported, as
compared to 1,349 cases in 2010, an increase
of 15.4 percent. UP again led, with 25.5 per-
cent of the total number of rape cases, fol-
lowed by Madhya Pradesh (MP) with 21 per-
cent. And how can one forget the recent rapes
and hangings of two dalit cousins in Badaun
district of UP?
Fortunately, Scheduled Tribes (STs), ano-
ther vulnerable community, fared better. A
total of 5,756 criminal cases were reported
against them in 2011, as compared to 5,885 in
2010, a decrease of 2.19 percent.
These statistics clearly establish that exist-
ing legal provisions to protect and stop atroc-
ities against dalits and tribals have failed. The
SCs and STs Prevention of Atrocities (POA)
Act, 1989, has proved to be ineffective even 20
years after it came into existence. In a bid to
get the government to amend this act in view
of its ineffectiveness, around 400 dalit, tribal
and human rights organizations joined hands
in 2009 to form the National Coalition for
Strengthening the POA Act (NCSPA).
Its efforts led to the UPA-II government
introducing a bill to amend the POA Act in
the Lok Sabha at the fag-end of its tenure on
December 6, 2013. However, the government
failed to build a consensus in parliament to
pass the bill. So, it promulgated an ordinance
in March 2014 to bring in new amendments.
ABORTED AGAIN
Under the new Modi government, Thaawar
Chand Gehlot, minister for social justice and
empowerment, reintroduced the bill in
parliament on July 16, but unfortunately, it
was referred to a standing committee.
NCSPA members ,feel that the govern-
ment is adopting delaying tactics. They have
appealed to Prime Minister Narendra Modi
to show his trademark decisiveness and act
on the promises made during his election
campaign to accord the highest priority for
ensuring their security, especially prevention
of atrocities against SCs & STs.
NCSPAs national convener and ex-
bureaucrat PS Krishnan, says: We are confi-
dent that the bill will be passed in both houses
of parliament once it is introduced, discussed
and voted. We fail to understand why the bill
was sent to the standing committee. Already,
enough discussions have taken place on it by
all concerned stake-holders.
Krishnans confidence may not be mis-
placed. SCs and STs comprise a big chunk of
the vote bank25 percentand it is highly
unlikely that politicians would want to antag-
onize them.
But why have atrocities against Dalit con-
tinued even into the 21st century? Krishnan
says that the violence is rooted in economic
factors. Caste violence has increased due to a
clash of economic interests. While the upper
castes still control land, they need the lower
castes to work there. Any refusal to do so or a
demand for fair remuneration leads to clashes
and violence. A survey of a village in Haryana
revealed that land holdings had not changed
in the past 20 years. Lower castes there con-
trol just 2 percent of land, he says.
Its obvious that till mindset of the upper
classes changes, no real change will take place
despite legislation.
To amend the SC & ST
(POA) Act, 1989
To prohibit the commission
of offences against SCs/STs
and establish special courts
for trial of such offenses and
rehabilitation of victims
To amend certain existing
categories and add new
categories of actions to be
treated as offenses. These
include:
(a) Forcing an SC/ST
person to vote/ not vote for
a candidate in a manner
that is against the law
(b) Wrongfully occupying
land belonging to an SC/ST
person
(c) Assaulting or sexually
exploiting an SC/ST woman.
This includes intentionally
touching her in a sexual
manner without her consent,
using words, acts or
gestures of a sexual nature
or dedicating her as a
devadasi to a temple, or any
similar practise. Consent is
defined as a voluntary
agreement through verbal or
non-verbal communication
(d) Garlanding with
footwear, compelling to
dispose or carry human or
animal carcasses or do
manual scavenging,
abusing them by caste
name in public, promoting
feelings of ill-will against
them or disrespecting any
deceased person held in
high esteem and imposing
or threatening a social or
economic boycott
(e) Preventing them from
undertaking the following
activities: Using common
property resources and
entering a place of
worship/education/health
institution
A fair deal
The Scheduled Castes and
Scheduled Tribes
(Prevention of Atrocities)
Amendment Bill, 2014,
seeks the following:
While the upper castes
still control land, they
need the lower castes to
work there. Any refusal
to do so or a demand for
fair remuneration leads
to clashes and violence.
51
IL
TECH/
email investigation
T
ODAY, most professional com-
munication happens through
emails. For several organiza-
tions, email is the primary
method of contact between
employees and the outside
world. In the emerging world of knowledge-
driven enterprises, wrongdoing also occurs
through emails. While emails are an efficient
carrier of useful messages, sometimes they
hold clues to many sinister events. These
include data theft, dishonoring agreements,
failing on commitments, leaking confidential
information, fraud, mismanagement, victim-
ization, harassment, coercion, cheating,
deception, and even infidelity.
As email becomes the ubiquitous carrier of
messages, law firms while investigating will
increasingly have to examine large amounts of
data that may contain evidence. Advocates will
have to progressively build water-tight cases
based on facts extracted from emails, while
using legally tenable processes. The legal fra-
CYBERMENTARY!
MY DEAR WATSON
legal experts face a new challenge
of unraveling critical information
from emails to track down law
evaders. a new software tool
makes the task a cinch
By Debasish Pramanik
ternity will have to utilize their own resources
rather than always depend on external data
security consultants for the extraction of evi-
dence from emails.
A law firm has numerous advantages in
doing email forensics on their own. Self-
reliance in email forensics helps law firms
expand their work domain, attain flexibility of
operation, deliver conclusions with accuracy
and speed, retain a high level of confidentiality
and achieve huge savings. Results of email
forensics have shown that it is reliable, and
stands examination in a court of law through a
scientific process.
Niranjan Reddy, a cyber crime expert,
works closely with the Pune police in their
fight against cyber criminals and other crimes
like uploading morphed images on the social
networking sites. He says that emails open a
new window in investigations, as these could
be used as evidence.
However, it is essential to determine own-
ership of the email accounts. This could
52
August 31, 2014
essential, along with other forms of e-discov-
ery technology, to aid speedy investigations.
While carrying relevant messages, emails also
contain bits of information that normally are
not visible to the user. An informed analysis of
these messages and bits of information can
help unearth evidence of certain activities and
behavior patterns. This in-depth search calls
for a sophisticated software tool (Systools
MailXaminer) that sifts through humongous
amounts of data with speed and precision to
find an activity or pattern of behavior by an
email user. To be admissible in a court of law,
the search process has to be logical and unam-
biguous. Apart from deciphering hidden
become crucial when investigating personal
email accounts. Most corporate email IDs are
regarded as companys property and the com-
pany has the power to scan incoming and out-
going emails.
If employees are explicitly informed that
email searches will happen in the company, it
is considered valid and does not affect privacy.
The information technology department is
then entitled to search corporate emails and
all that data goes through corporate proxy
servers, says Reddy.
According to the Information Technology
Act, this legal provision can also be used when
scanning computers at cyber cafes. If the email
in question is found to be sending out false or
misleading information or is being sent with
malicious intent or is defamatory in nature, it
can attract Section 66A under the Information
Technology Act. Data thefts and related inci-
dents through email can attract Section 43
and Section 66.
Reddy says digital forensics investigation is
Systools MailXaminer sifts through email
data with speed, precision and delivers
explicit reports that can withstand scrutiny
in courts. It is easy to intall and use.
53
DATA THEFT
A telecom company was facing issues
related to data theft from its premises. It
found that the marketing campaigns and
tariff plans were already being adopted by
its competitors, who had regular access to
some vital piece of confidential information.
Since the use of personal email acco-
unts was prohibited inside the company, an
internal audit was carried out to check the
official email accounts of all the employees
in the marketing department to ascertain if
emails had been exchanged with any out-
sider. However, nothing was found amiss.
Systools MailXaminer helped the lawyer
to rapidly search large data sets for impor-
tant documents which were critical for litiga-
tion while culling large volumes of irrelevant
data. The software tool recovered perma-
nently deleted and damaged emails.
The analysis of these emails proved that
confidential information was indeed getting
leaked from one of the email accounts.
MailXaminer also enabled the lawyer to
zero down to the source of origination of
the email and the IP addresses of the
machines where the email had traversed.
Further investigation revealed that the
account belonged to a disgruntled employ-
ee, who used to share information on cam-
paigns and tariff plans with his counterpart
in the competitor organization. He used to
delete the mails from the sent items folder
and then clear them from the deleted fold-
er. Thats why nothing could be found at
the companys internal audit.
Based on the evidences found in the
recovered deleted emails, the culprit
employee was prosecuted and convicted
for the misuse of confidential and copy-
righted information.
INFORMATION LEAK
A multinational pharmaceutical organiza-
tion had to find out a possible data leak
from its research and development (R&D)
department. The management suspected
that a 50-plus employee in the department
was giving away the information, and this
was possible only through emails.
To scrutinize the emails of all 50-plus
employees meant surfing through hun-
dreds of GBs of data contained in various
email file formats like PST, OST, EDB, NSF,
Mbox, webmail (Gmail, yahoo), etc. Going
through all of them one by one and trying to
discover smoking guns was next to
impossible. And, outsourcing the digital
forensic investigation to a eDiscovery serv-
ice provider was not only costly but time-
consuming as well.
The lawyer collected the email archives
of all suspects and used MailXaminer to dig
down deeper. He performed an Advanced
Search searching for words like the com-
petitor companys name in the body of the
mails/attachments or for the domain name
of the competitor in the recipient email
address (To field).
He also searched for Bank Accounts
Numbers using the Regular expressions
based search, to find out if there was any
financial transaction.
The outcome of the searches showed
that a few emails which were exchanged
with an employee of the competitor compa-
ny contained information about a copyright
chemical composition. The email evi-
dences gathered by the lawyer formed the
basis of litigation when he lodged a formal
complaint against the culprit.
The lawyer presented all the evidences
in the court on behalf of his client and was
able to prove that the accused was inten-
tionally leaking confidential chemical com-
positions and formulae to a competitor, vio-
lating the companys code of conduct and
breaching the data protection protocols.
The accused was convicted of data theft
and was sentenced to imprisonment under
the data protection laws.
BREACH OF TRUST
A boyfriend had a sneaking suspicion that
his girlfriend was cheating on him. The cou-
ple was sharing a computer for many of
their activities. The boyfriend had seen what
he thought was an e-mail from another man
in his girlfriends in-box. When he accessed
the account, there was no such message,
but he was sure his eyes did not play tricks
on him. The boyfriend contacted a lawyer to
find out the truth.
The web-based e-mail system was
making it difficult for forensic investigators
to recover deleted messages. Using
MailXaminer, the lawyer discovered a series
of unmarked archived files left by the e-mail
program, even though they were deleted.
All these e-mails were created under a
dummy account.
The compressed files revealed that
there were multiple conversations, thus
pointing to betrayal by the girlfriend.
When MailXaminer did a Sherlock Homes
agenda in professional messages, email foren-
sics is also extremely useful in certain cases of
marital infidelity.
The email forensics uses a sophisticated,
yet easy-to-use software tool. The design of
this tool ensures swift, in-depth searches
across emails in a variety of formats, within
password protected, encrypted or damaged
files, even if the client software is not installed
on the computer used to search. The graphical
dashboard interface is logical and intuitive,
and the user need not have technical/pro-
gramming knowledge.
The tool delivers clear, unambiguous
reports of the conducted search. The results
provide evidence of an event, activity or pat-
tern of behavior from within the emails. The
foolproof logic behind evidence gathering
removes all subjectivity and conjecture and
the results withstand the scrutiny of processes
in courts.
Systools MailXaminer is easy to install and
use. Anticipating that the user may not be an
expert computer user, the tool is backed by a
friendly and comprehensive customer sup-
port, available anytime and anywhere.
TECH/
email investigation
54
August 31, 2014
IL
I
t was the mid 90s and Pune was changing. Nestled in
the rolling Sahyadris in Maharashtra and long known
as pensioners paradise and Oxford of the East,
this sleepy town was in a hurry to shed these sobri-
quets. Thus began large-scale industrialization and
the ingress of IT companies that were shifting out of
Bengaluru due to infrastructure exhaustion.
It was perfect. Or so it seemed, until buyers, many of them
who returned to Pune to settle down woke up to a horror that
they had never imagined. Despite the rivers, dams and rainfall
they had no water. The PMC had either not laid water pipelines
at all or had provided inadequate pipelines. Many of the fringe
areas fell under water scarcity zones and borewells yielded
nothing.
Harried residents began supplementing water by tankers,
many of them private. For a few months, no one realized how
much water was being purchased, but soon annual audits began
throwing up astounding figures. Some large housing complexes
were coughing up to `1-2 lakh a month only on water. The qual-
ity of the water was suspicious, as the PMC had no control over
these private entities.
High and Dry
Pune corporation makes
builders sign water affidavits,
passing on the responsibility of
water supply to them. flat
buyers are left in the lurch
By Ritu Goyal Harish
Aruna
RIGHTS/
water supply/pune
55
56
August 31, 2014
Citizens rushed to the PMC, filing applica-
tions to increase water supply and lay more
pipelines. These were ignored and no reason
was assigned for a very long time. Finally in
2009, the residents of a sprawling housing
complex, with 55 apartments, unearthed a
shocking document.
Now known as the water affidavit, this
document was an undertaking given by the
builder to the PMC that since he was aware of
water scarcity in the area where he sought to
construct houses, he would be liable to provide
water to the complex, at his own cost. The doc-
ument further stated that the builder would
never ask the PMC for water and would inform
the prospective buyer of the existence of this
affidavit. Citing this document, the PMC began
turning citizens away.
Sudhakar Velankar, consumer activist and
founder of Grahak Hitavardhini, a consumer
organization clarifies: It is the statutory
responsibility of the PMC to provide water to
the citizens. The provision is mentioned under
section 63 (20) of the BPMC, 1949 (The
Bombay Provincial Municipal Corporations
Act). How can they shirk their responsibility?
The affidavit is completely illegal.
According to Shirin Merchant, advocate
Sec 63 - Matters to be
provided for by the
corporation:
(20) The Management
and maintenance of all
municipal water works
and the construction
and acquisition of new
works necessary for a
sufficient supply of
water for public and
private purpose
What the Law
(BPMC Act,
1949) says
WHERE BASICS GO WRONG
The mindless growth of high
rises in Pune ignored the fact
that the city was a rainshadow
area and as such deprived
of water
and resident of a complex that has its own
water affidavit, the PMC is on legal quicksand
by entering into an agreement with the builder.
The PMC is charging water tax without giving
us water. How can they put the onus of water
on the builder and take taxes? she asks.
THE LURE
Professionals with sizable incomes (especially
in the IT sector) thronged to Pune, attracted by
its salubrious weather and peaceful life. The
demand for housing grew and the civic body,
Pune Municipal Corporation (PMC) rose to the
occasion. City limits began expanding, as the
PMC roped in villages and gram panchayats
into its fold, giving permission to ambitious
builders to construct homes for the burgeoning
population and an ever-rising realty demand.
There was only one problem. The PMC, in
its rush to sanction plans and give building per-
missions realized that it did not have the funds
to expand its existing infrastructure and pro-
vide utilities such as water through its existing
network of pipelines. As a matter of fact, sever-
al areas, where residential complexes sprung
up in 2001-2002, still do not have adequate
infrastructure. But home buyers were blinded
by what they saw.
RIGHTS/
water supply/pune
57
Spurred by a furore created in the local
media in 2009, Velankar had conducted sever-
al public meetings to apprize citizens of their
rights. But his efforts did not yield any result.
Merchant also faces outright dissonance when
she mentions collective legal action.
Its too expensive, the builder is very pow-
erful residents give ridiculous excuses.
Theyd rather pay for water than fight for their
rights, she adds.
Shyam Kuddyady is a resident of Konark
Campus that was in the eye of the storm in
2009. After five years he says they are still
struggling with water. Our annual water
tanker bill is more than `36 lakh.
There is a lack of enthusiasm and energy
among citizens to take on the builder for many
reasons, some of them vested, he adds.
In his complex, a two-bedroom, lawn-fac-
ing apartment will fetch `9,000 a square foot,
a whopping `1 crore for a house that has no
water. Welcome to the high and dry life of
high-rises in Pune.
Pune was a land of surpluses seven rivers,
seven dams (this number has gone up since
then) and 770 mm of annual rainfall (this fig-
ure has dipped since then) meant surplus
water. Land was surplus and therefore cheap.
Builders offered economical, large-sized apart-
ments, in large projects (with swimming pools,
gyms etc) to starry-eyed buyers. Proximity to
Mumbai made buyers compare the exorbitant
realty prices in Indias commercial capital just
180 kilometres away and soon Pune became
the Utopia they sought.
According to dnaindia.com report in 2009,
a locality in the eastern suburb of Pune with
110 housing complexes generated an annual
business of `4.5 crore for water tankers.
It is alleged that most private tankers are
owned by elected representatives of the civic
body who earn huge amounts through the sale
of water. The stakes are high and perhaps that
is why the PMC doesnt want to empower the
buyers, says Merchant. Her observation is not
far from truth, since the PMC has failed to
ensure compliance of the terms therein.
According to Merchant, there are over
4,000 5,000 housing complexes in Pune that
have such affidavits and are suffering due to the
apathy of the PMC. Yet there is no uproar or
agitation or even awareness-building. Citizens
afflicted by such water affidavits (procured
through RTI applications) have approached
the district consumer court in Pune. In most
cases they have been given relief.
But most efforts are ad-hoc. Merchant had
filed a PIL in the Bombay HC in 2012, chal-
lenging the water affidavits, but it was dis-
missed on superficial technical grounds. The
consumer court supports the residents who are
suffering but these are isolated. I wanted to
challenge the whole practise of taking a water
affidavit, she adds.
WHY CLASS ACTION IS NEEDED
The civic body has been partisan and fraudu-
lent in its mandatory duty to provide water to
those it collects taxes from. The only way it can
be put in the dock and made answerable is by
collective action by citizens.
But this is easier said than done. Both
Merchant and Velankar concur that Punes cit-
izens lack the fervor needed to pull up the PMC
as well as the builders.
In a landmark case in
2005 the Bombay HC
ordered the PMC to
provide water to the
tax-paying citizens in
Bhusari Colony, Pune,
for free, following an
agitation spearheaded
by resident Bandu
Khemse.
Protest, key to
solutions?
IL
PHOTO ESSAY/
visually challenged
MINDS
H
ow many of us bless ourselves for the gift of sight? We take it for granted. The
2011 Census shows that 10,634,881 people suffer from visual
disabilities in India. It is a daily battle for them to live as normal a life as
they can, as the world around them is not sensitive, public spaces are not
disabled-friendly and there is discrimination in jobs. It is as if we just do not care. But
many fight adversity to emerge triumphant and show us that there is much more to life
than we think. They show us how narrow our vision is and how large theirs can be.
58
August 31, 2014
I
N her Mumbai home that doubles up as
a beauty parlor, Reshmi Sonawave, 33,
spreads a face pack on a client with
care, while others wait expectantly for her
attention. One of them quips that Reshmi is
lucky she does not need any beauty treat-
ment as she is stunning. When she clips
the hair of another girl, she does it with pre-
cision and soon, it bounces into shape.
Later, when she boards a bus to go shop-
ping, she demands a seat reserved for the
physically challenged. The conductor turns
to her rudely saying that he is no fool.
Reshmi is often misunderstood, as she has
such pretty eyes. But all she sees is dark-
ness. When she was in the XIIth standard,
she suddenly saw alphabets merging as
she read. And in the worst nightmare of her
life, she slowly saw her sight fade away.
Genetic blindness had robbed her of sight
and her world suddenly went dark.
When she wanted to get married, her par-
ents opposed the match, as the man she
loved was from a lower caste. They severed
relations with her when she insisted on the
wedding. It is one decision she has never
regretted. Her blindness does not stop her
from being a good wife and mother, she
says smiling.
T
HEIR lives are entwined, not only on stage,
but in real life. Jharna and Shamim Akhtar
are members of the Blind Opera in Kolkata.
Theatre has given them a sense of freedom, identity
and dignity. A thick rope on stage is a signal about
how far they can go. Jharna was born blind, while
Shamim, who is also a singer, lost his sight when he
was three. Their marriage attracted stiff opposition,
as Jharna was a Hindu and Shamim, a Muslim. But
they wanted love to triumph. It did. Life is beautiful
with two children and the joy that comes after their
stage shows every day. Nothing ever goes wrong.
EYE
the life of the blind is not as
hopeless as we imagine. close
your eyes and you will see their
dark world. but, they manage to
see light even in the darkness
By Ramesh Menon
Photos by Sipra Das
Inner Beauty
All the Worlds a Stage
59
60
August 31, 2014
PHOTO ESSAY/
visually challenged
W
HEN Riyazuddin was in his
twenties, he was bitten by
an insect on one eyelid.
The doctor put a medicine in his eye
that was past expiry date. He lost
vision in that eye. Strangely, after
some time, he lost vision in the
other eye too. Then started a saga
of struggle.
As a very highly regarded motor-
cycle mechanic in Bhopal, today,
Riyazuddin boasts a legendary fan
following, as he is sharp with his
diagnosis of mechanical faults.
Once, he got a call from a client
who said his motorcycle wasnt run-
ning well. Riyazuddin asked him to
kick-start it. By just hearing the
sound of the engine, he knew what
was wrong. Engineers from Enfield
have also visited him, as he is a
whiz-kid with motorcycles.
Since he is blind, people try to
Marvel Mechanic
61
take him for a ride. Once, when
Riyazuddin went to buy tyres, the
shopkeeper gave him a retreated
one thinking he would never know.
Riyazuddin just ran his hands over
to feel the tyre and rejected it. One
after the other, three more retreated
tyres were rejected. When the shop-
keeper finally gave him a new one,
Riyazuddin knew with one touch that
he had got what he wanted. Its a
cruel world, but those who are visu-
ally impaired try not to focus on it.
The Law of Things
A
FTER a long and painful
struggle with retinal degen-
eration, Kanchan Pamnani,
has learnt to live a life the way she
had dreamt. As a child, she used to
have problems with sight, which got
worse in spite of good treatment.
Fortunately, her parents were sup-
portive and encouraged her. She
completed her law degree and now
does her practice in Mumbai, advis-
ing clients on litigation, intellectual
property rights as well as consumer
issues. Pamnani enjoys life as a
successful lawyer and says: Life is
meant to be enjoyed as it is. I am
very positive and believe that for-
tune favors the brave.
62
August 31, 2014
PHOTO ESSAY/
visually challenged
Thats the Spirit
Waves of Joy
P
RAKASH Sharma was a 15-year-old bouncy girl in
Pathankot; in love with life. As it was customary in
those areas in the sixties to get married early, she
was already engaged. An irritating eye infection took her to
a doctor. The compounder mistook acid for eye drops and
poured it into her eyes. She lost her sight. But her fiance
stood by her and told his distraught family that he would
not break off the engagement as she could have been
blinded even after marriage. He worked hard to become a
doctor and then married her. Their life revolved around
their two children. As he wanted to set an example to oth-
ers, Prakashs husband went in for a vasectomy. Another
tragedy struck when a doctor mistakenly cut the tract that
carried urine. After the botched operation, he walked
around with a urine bag and battled numerous health com-
plications. One of them was cancer and it proved fatal.
If that wasnt enough of a blow to Prakash, her son got
married and after that, did not want to look after her.
Prakash did not want to live with her daughter as she was
living with her in-laws. It was tragedy after tragedy, but that
did not break her spirit. Wanting to stand on her feet, she
now works at a small rehabilitation center, stitching
clothes. With just a meager income of `2,500 a month, she
manages to chug along. All she wants in life now is not to
become a burden.
I
T was joy personified when six visu-
ally challenged boys decided to
visit the Digha beach in West
Bengal. Well-known for its lovely gold-
en beaches, Digha is a favourite tourist
spot. They had heard accounts from
those who had been there and decided
it was time they sampled it for them-
selves. Once they got their feet into
the water they were exhilarated with
the experience.
When Sipra Das patiently stood in
the shallow water trying to capture their
playfulness, she was scared for them as
the weather was rough.
They had a great vacation for four
full days. It is something they will
always remember. Actually, it is so easy
to be happy.
63
Standing on her Feet
E
LEVEN-YEAR-OLD Bitasta cannot see,
hear or speak. Her supple body move-
ments help her easily teach yoga to
other children. Bitasta was found in a dustbin
in the Manicktala area of Kolkata. When the
police arrived to rescue her, they found three
dogs guarding her. They followed the police-
men all the way to the police station and left
only when they found that she was being
taken care of. The policemen were amazed.
She was then entrusted by the state to a rail-
way employee who adopted her. Bitasta loves
performing yoga and realizes that there are
many children who follow her asanas as she
performs on a manicured lawn.
Visionary Teacher
S
MALL-POX deprived Jawaharlal Kaul
of his eyesight at five. He wanted to be
a teacher and worked towards it, final-
ly setting up a school for the visually
challenged in Amritsar. When he met Usha,
also blind, he knew he was in love and mar-
ried her. When he tried to set up a school in
Gurgaon, a government official demanded
speed money. Jawaharlal secretly videotaped
him and used it as evidence. He is
determined to fight corruption, no matter
what it takes
Children of Joy
O
NE day while watching a film, Neela Dave felt her eye-
sight fading away. The shock came when the doctor
said that she would eventually go blind due to retina
pigmentation. Transporter Deepak Dave married her despite
opposition from both families.
After she became completely blind, she started a nursery
school in Mumbai. She finds great joy being with the children
who also adore her. She counts her blessings everyday and
feels the world is so beautiful. It is something that most of us
never see in our lifetime.
PHOTO ESSAY/
visually challenged
64
August 31, 2014
Numero Uno
D
ILIP Loyalkas life begins every morning with his wife,
who is a company secretary, reading out the newspaper
to him. Being blind has not handicapped him in any
way. Early in the morning, he starts meeting his clients in
Kolkata, as he is a much-sought-after chartered accountant. He
also runs a consultancy firm that his father set up, apart from
owning an Indian Oil outlet in the metro. He has also authored
a book on income tax that has become popular. He never com-
plains about the increasing workload. Knowledge never gets
used up, it multiplies each time you apply it to a situation, he
says. Dilip has shown what heights one can reach even when
the world you virtually see is a patch of darkness.
PHOTO ESSAY/
visually challenged
Shepherd of his Flock
B
HAGWATSINH DHABHI may be blind,
but he is a perfect shepherd in Navi
Aral village in Kheda district of Gujarat.
Not once has a single sheep gone missing
from his flock. They always stay around him.
He listens to the sound of their movements
and flowlessly directs them every day.
Music Therapy
M
USIC soothes Vishal
Rao as it inspires him to
look beyond his blind-
ness. He feels his powers of con-
centration helps him pick up
musical notes faster than others.
He loves the violin and the flute.
As he plays, he often thinks of
Maya, his love, whom he plans to
marry soon.
P
HYSIOTHERAPHY students
Chirag and Mamta spend
some moments alone away
from their campus at the Blind
Peoples Association at Ahmedabad
Love is many splendored thing...
Love Blossoms
66
August 31, 2014
The United Nations
Convention on the Rights
of Persons with
Disabilities is based on
equality. Its core
principles are:
1. Respect for human
dignity and the
freedom to make ones
own choices.
2. Non-discrimination.
3. Full inclusion in society.
4. Respect and accept-
ance of persons with
disabilities.
5. Equality of opportunity
6. Disabled-friendly
public buildings.
7. Respect for the
right of children with
disabilities to preserve
their identities.
Education: Give free education to dis-
abled children up to 18 years, integrate
them in normal schools and set up spe-
cial schools. Besides, provide informal
education, vocational and life skills.
Remove architectural impediments in
schools, provide suitable transport,
books and scholarships. All educational
institutions are to reserve at least 3
percent seats for the disabled.
Employment: The act provides for a
minimum of 3 percent reservation for the
disabled in government jobs.
Non-Discrimination: The transport sec-
tor should provide easy access to the
disabled. Toilets and other facilities are to
be modified, elevators should have
Braille symbols on the buttons, zebra
crossings should have engraved sur-
faces and red lights should auditory sig-
nals for the blind. A government servant
who becomes disabled in the course of
employment cannot be demoted, and
must be transferred with the same pay
scale and perks if the current job is not
possible due to the disability
Special Rights
Sipra Das has been a leading
photojournalist for over 27 years. She
found her life change as she shot the
visually challenged over a period of a
decade. It is one assignment she
will never forget.
Poet Gulzar said that Sipra had a
heart in place of the lenses on
her camera. The blind taught me to
see better, she says.
Rights of the Disabled
67
AFTER
THE
LONG
WINTER
indias relations with
america, which were
on the downturn during
upa-2, witness a thaw
with secretary of state
john kerrys visit, but
much ground remains
to be covered
By Seema Guha
DIPLOMACY/
indo-us ties
U
S Secretary of State John Kerrys two-
day visit to India for the fifth round of
strategic dialogue did not result in any
big bang announcement. But nobody
expected it, considering that the rela-
tions between the oldest and largest
democracies in the world were in the
doldrums all through the second term of the Manmohan
Singh-led UPA government.
This was Kerrys first engagement with the new establish-
ment in India. It was more in the nature of both sides sound-
ing out each other on where they want the relationship to
head. By all accounts, Kerrys meeting with Prime Minister
Narendra Modi was excellent. Modis emphasis on opening up
of the economy to generate jobs and his talk of improving the
infrastructure was exactly what the US wanted to hear. The
upbeat mood was somewhat dampened by India scuttling the
WTO agreement in Geneva, but otherwise the message from
New Delhi was positive.
Commenting on the first encounter between the Obama
administration and the new Modi government, Naresh
Chandra, former ambassador to the US, said: There was not
much substance in the Kerry visit, apart from setting the stage
for much more productive relations in future. The two coun-
68
August 31, 2014
ICE-BREAKER
Prime Minister Narendra
Modi and External Affairs
Minister Sushma Swaraj
with US Secretary of
State John Kerry
69
tries observed the necessary formalities and
the US reiterated its commitment to forging
strong economic and political ties with India.
But both sides will have to work hard to get
things in place ahead of Narendra Modis
September visit to Washington.
ALL ABOUT ARMS
The US is obviously doing its bit to revive the
relationship, which floundered in the last
couple of years. Close on the heels of Kerry,
came Defense Secretary Chuck Hagel. This
turned out to be a much more substantive
visit. Hagel pushed for reviving the moribund
Defence Trade and Technology Initiative
(DTTI), which would result in joint produc-
tion of military hardware and joint research
for new technology. The Americans are keen
to sell Javelin anti-tank guided missiles to
India. The anti tank missile deal, if it comes
through, will be worth around $2.5 billion.
But India remains skeptical about the prom-
ise of technology transfer. There will be hard
negotiations on the table before any defence
deal is wrapped up.
Joint defense production went nowhere
when the ever-reluctant AK Antony was
defense minister. Arun Jaitley, defense
PIB
it will make little difference, whether
it is 21 or 49 percent, unless FDI is
raised to 51 percent.
The government has also set a
quota for local procurement. Indian
private players, however, are not really
experienced in this business. It would
take time for Indian companies to pick
up the threads so it may be a good idea
to be a little flexible here. Though the
US keeps grumbling abo-ut India not
buying enough from American com-
panies, in the last 10 years, New Delhi
has bought over $10 billion worth of
military ware from the US.
PAST BAGGAGE
John Kerrys visit helped to repair the
damage of the past and focused atten-
tion on the future, where some impor-
tant forward looking deals will be
announced following the Modi-
Obama summit in September, says
Lalit Mansingh, former foreign secre-
tary, who tracks India-US ties closely.
How much ground was covered will be
evident during Prime Minister
Narendra Modis first official visit to
Washington for a summit with Presi-
dent Barak Obama this September. All
of this is still work in progress, as the
two sides begin nego-tiations on
defense, nuclear power, clean energy
and defense off-set. More trade and
American investments will be an
important component of the ties.
Much will depend on how much
political baggage the BJP is able to
shed from its days in the opposition
and how far America is willing to
accommodate Indias concerns. Iro-
nically, the BJP-led NDA government of for-
mer prime minister Atal Bihari Vajpayee was
responsible for a paradigm shift in ties with
the US. The UPA took forward what the NDA
had begun and transformed relations with the
signing of the India-US civil nuclear deal.
The BJP, while in opposition, took a decid-
edly anti-American posture and was one of
the main sponsors of the tough new Nuclear
Liability Law, which has prevented US
nuclear vendors from setting up plants in
THE BONHOMIE YEARS
US President George
Bush and former prime
Minister Manmohan
Singh, when Indo-US
relations were at
their best
and finance minister in the NDA government,
has already indicated that FDI in defense pro-
curement will be raised to 49 per cent, to
allow foreign companies collaborate with
their Indian counterparts and set up units in
India. But according to Naresh Chandra, this
is not enough. He says that unless FDI is
raised to 51 percent, and the foreign vendor
has controlling rights, no company will be
willing to sell high-end technology to India.
He explains that for any American company,
70
August 31, 2014
DIPLOMACY/
indo-us ties
India. So focused was the BJP then in scut-
tling every move of the Congress, that the
party forgot that it could one day be in the
treasury benches.
The US will certainly want the Modi gov-
ernment to amend the Liability Law, so that
American companies can benefit. After all, if
it were not for George Bush, India would have
remained a nuclear pariah. But amending the
law will open the BJP up for criticism, consid-
ering the party was vehement in its opposi-
tion to the nuclear deal signed by the UPA.
Perhaps Modi will go for reinterpretation of
the law, get the attorney general to look into
it and give a verdict which will allow US
nuclear companies to do business with India.
The law will have to be made investor friend-
ly. That might take time.
NUCLEAR RELATIONS
India will be pushing for its promised entry to
the Nuclear Suppliers Group (NSG), the
Missile Technology Control Regime (MTCR),
the Wassenaar Arrangement and the
Australia Group. All of this was part of the
promise made when the nuclear deal was
signed, but considering that India did little to
promote American nuclear vendors, there
was not much enthusiasm in Washington to
bring India on board. Besides, unlike the neo-
conservatives who filled the Bush administra-
tion, there was much disquiet among
Obamas Democrats on India getting into the
non-proliferation regimes without signing
either the Nuclear Non Proliferation Treaty or
the Comprehensive Test Ban Treaty. With
better political relations between Obama and
the new Modi dispensation, all this may grad-
ually fall into place. In the joint statement
released at the end of the strategic dialogue,
the two sides noted: Secretary Kerry reaffir-
med the United States support for Indias
membership in these groups and welcomed
Indias recent decision to ratify its Additional
Protocol with the IAEA. The two leaders sup-
ported an early conclusion to these efforts.
VISA TANGLE
The visa issue is high on Indias list of priori-
ties. If changes are made to accommodate
Indias IT professionals, it will go a long way
in reassuring New Delhi that the US is serious
about improving ties with India.
Speaking of visas, it is now evident that as
prime minister, Narendra Modi will not let
the fact that he was not allowed entry to the
US after the 2002 Gujarat riots affect ties. He
cannot afford to let the past haunt his vision
for the future. Modi, like other senior leaders
of the BJP, realizes the importance of improv-
ing ties with the US, which, despite talk of its
waning powers, remains the worlds only
super power.
India needs to get its relations with the
US right. Once this is done, the rest will fol-
low, says former Indian ambassador to
Washington Ronen Sen. It gives us leverage
and elbow room at the global stage, he
explains. Whether it is China, Pakistan, the
neighbors or the EU, the signal goes out from
the US, which still remains the worlds super
power. It is therefore important for New
Delhi to put all its efforts to get things work-
ing with the US.
The hope that Indias economy is turning
around and may in the next few years accel-
erate to at least seven to eight percent, is
reviving American business interests. The
US business is again seeing India as a trillion
dollar economy and is eyeing the huge market
India provides, Mansingh says.
Prime Minister Modi wants to kick-start
growth; he knows that without foreign invest-
ments jobs cannot be created. He under-
stands the imperatives perfectly and with a
brute majority in Lok Sabha he may be able to
do much more without being hampered by
criticism of coalition partners, the former
foreign secretary explains.
The Americans are looking to invest in
Indias infrastructure and speed up defense
ties. The mood on both sides is optimistic, but
India will have to show flexibility. As Naresh
Chandra advises: The important thing is for
India to realize that the US likes to cut deals;
we have to give some to get some.
When it was in the opposition, the BJP had
been rigidly opposed the nuclear deal. Now,
the Modi regime will have to rework its
stand on nuclear liability.
IL
71
BOOKS/
ari shavit
I
n April, 1897, Herbert Bentwich,
a successful, prosperous and very
British solicitor (and the authors
great-grandfather) arrives in
Palestine, one of a group of well-
heeled British Zionists on a luxu-
rious exploratory visit. They are
taken ashore by Arab stevedores, attended to
by Arab staff, guides, horsemen, servants,
travel (in great comfort) through Arab towns
and villages, but the Palestinians are invisible
to them. Says Shavit of his ancestor: I
understand him perfectlyhe is motivated
by the need not to see. He does not see
a book that
describes how
the zionists
beat their
ploughshares
into swords
By Jagdish
Sagar
because if he does see, he will have to turn
back.
Shavit does see. His account of Lydda
(now Lod) is impossible to forget.
This little Arab town with its two mosques
and cathedral prospers in proximity to
friendly Jewish settlers. Dr Lehmann, an ide-
alistic German Jew, builds the Lydda Valley
youth village as an example of what Zionism
should be: a salvation project providing
roots to the uprooted but untainted by colo-
nialism. He befriends the gentry of Lydda,
attends to the survivors of an earthquake,
opens his dispensary to Arabs, inoculates
THE INVISIBLE
AND THE
STRUGGLE
BEGINS
Palestinians
leaving their
home in the
aftermath of the
1948 war between
Israel and
Palestine
72
August 31, 2014
My Promised Land:
The Triumph and
Tragedy of Israel
By Ari Shavit
Scribe Publications, 2014
Price: $28
Arab children, teaches his students to respect
the Arabs and their culture and invites Arab
performers to his youth villages festivals.
In 1948, Lydda suspects nothing. It does
not see that Zionism has become, in Shavits
words, a movement of cruel resolve, deter-
mined to take the land by force. Even as war
breaks out, Lydda remains untouched.
Then it happens. Dr Lehmann disappears
from the narrative, but those participating in
what follows include his students. As the
Jewish army takes the town, civilians are
massacred. Asked what to do with the Arabs,
Ben Gurion waves his hand: Deport them.
Another future prime minister, Yitzhak
Rabin, issues the written order: The inhabi-
tants of Lydda must be expelled quickly,
without regard to age.
Jewish soldiers make eight Palestinians
bury seventy bodies, then shoot them too.
Tens of thousands of Palestinians, not
allowed to take their motor vehicles, agree to
leave, walking in a long column with what
they can carry. Women are searched and
humiliated, Jewish soldiers fill jute sacks
with their necklaces, earrings, silver
and gold.
And now Shavit surprises us: the
choice is stark he says: either reject
Zionism because of Lydda, or accept Zionism
along with Lydda. He chooses the latter:
They did the dirty, filthy work that enables
my people, myself, my daughter and my sons
to live. (Live, that is, as Israelis.) He
approves Moshe Dayans speech at the funer-
al of an assassinated Jewish officer in 1956:
Let us not cast blame today on the murder-
ersthey have sat in the refugee camps of
Gaza and have watched how, before their
very eyes, we have turned their land and vil-
lages, where they and their forefathers
dwelled, into our homeWe are a generation
of settlement, and without the steel helmet
and the guns muzzle we will not be able to
plant a tree and build a house Let us not
drop our gazeor else the sword shall fall
from our hands and our lives will be
cut short.
Shavit revels in a heroic side to Israel that
was, before its later military successes, exem-
plified in the early Kibbutzes: And as the
plows begin to do their work, the Jews return
to history and regain their masculinitythey
transform themselves from object to subject,
from passive to active, from victims to sover-
eigns. That is what Israel was and is all
PALESTINIAN
73
about (but note the paean to masculinity,
odd in this day and age but with a chilling
resonance from the first half of the twentieth
century.) The driving force of Zionism was
the desire felt by European, secular and usu-
ally atheistic Jewspeople like Bentwich
for a sense of secular Jewish nationhood, to
feel pride in a perceived identity. Shavit sees
absorption in a secular West, what his ances-
tor declined, as a threat to this (purely secu-
lar) identity. Intermarriage with non-Jews
he views with concern as rampant: had
Bentwich stayed in Britain, his descendants
might have been happier, but they wouldnt
have been as Jewish.
T
o be sure, a genuine need for refuge
from persecution had a legitimate
place in the Zionist project. The
Palestinian Homeland did indeed accom-
modate refugees; many came escaping
persecution and the holocaust that followed,
and they did heroically build a new life for
themselves, something impossible not to
applaud. But they were a drop in the bucket
and could not have been much more: as
Shavit tells us, Palestine/Israel was hard-
pressed to take in just 750.000 immigrants
between 1945 and 1951.
Today Israels population includes over six
million Jews and over two million others,
mostly ill-treated Arabs. But over half that
Jewish population is from the Middle East,
Asia and Africa; those from West Asia and
North Africa would not have had to flee their
homes if Israel had never been created;
indeed, with their Arabic culture many did
not initially feel at home in Israel. Others
came, and come, for reasons of identity or
economic opportunity: like Indian Jews. A
nation, after all, is an imagined community.
Israel has built a dynamic, entrepreneur-
ial, creative and in some degree hedonistic
society far removed from the life and ideolo-
gy of the kibbutzim. As Jews, we never had it
so good. But, says Shavit, Athens must keep
something in it of Sparta. A liberal Zionist,
he disapproves of the post-1967 settlements
driven by religious fanatics claiming the rest
of Palestine on the strength of the Bible; he
believes the settlements must be vacated, yet
cannot believe that doing so could help to
bring about peace. Israel, for him, is sur-
rounded by implacable enemies, and must
face them down for all time to come. He
vocally supports Netanyahu on Iran: but
would anyone expect, in the face of Israels
own nuclear weaponry, that others would not
follow? Shavit himself does not seem to think
so, only that the dreadful moment must be
put off.
There is something missing here. Must
everyone around Israeleven the
Palestiniansreally be an enemy forever, for
all time to come? Does even a balance of
nuclear weapons necessarily leadcontrary
to all experienceto war? Or do even liberal
Zionists cling, somewhere deep inside, to a
paranoid glory of permanent struggle? Why
is there no thought of healing wounds, any
kind of magnanimity? Has Israel, in the
longer perspective of history, any future
without reconciliation? To me the most
revealing passage in this book is the experi-
ence of an Arab-Israeli lawyera friend
whom Shavit characterizes without embar-
rassment as so Israeliin back-channel
talks between senior Palestinians and Israeli
peaceniks. The Palestinians wanted Israel to
pay reparations to build the future Pales-
tinian state just as the reparations paid by
Germany to Israel were utilized for national
projects. At which the peaceniks went
berserk and the talks collapsed.
Shavit starts his book: For as long as I
can remember, I remember fear, existential
fear. He is reasonable enough to place the
blame for that where it belongs. But not once
does it occur to him to apply that Israeli shib-
boleth, existential threat, to the Palestinian
condition: that remains invisible. IL
BOOKS/
ari shavit
Volatile
Coexistence
Egypt
Israel
Israel
Jordan
West
Bank
Saudi Arab
Syria
74
August 31, 2014
BRIEFS
Bonded by love,
hounded by law
IT is a case of love-turned-sour and a
knotty re-union. The case underscores
the legal perils shadowing teenage
consensual sex. A girl from Mumbai
recently filed a case of rape against her
boyfriend of teen years when she felt
cheated by him.
The girl, a Gujarati, then had a
change of heart and married the Marathi
boy, saying that she still loved him. But
now the married couple is finding it hard
to get the case quashed.
The couple has realized that a rape
charge is not easy to shake off and
cannot be settled out of court, with or
without the courts consent. Nor can
courts quash it simply at their urging.
A bench of Justices VM Kanade and
PD Kode, hearing the case, expressed
concern at the young couples fate and
said it wished to look at the larger picture
instead of just quashing the case.
Sexual harassment at work
THE first woman chief justice of the Delhi high
court has issued guidelines for dealing with
sexual harassment complaints at the workplace.
The guidelines, endorsed by Chief Justice G
Rohini, were recommended by the Courts
Committee Against Sexual Harassment Of
Women At Workplace. The chief justice has also
appointed DS Bhandari as nodal officer for
dealing with sexual harassment complaints. The
high court has also assured that all proceedings
emanating from the complaints made under
Sexual Harassment of Women at Workplace Act,
2013, shall be dealt with confidentially. The
guidelines, however, are categorical about not
entertaining anonymous complaints leveling
allegations of sexual harassment.
Poster blues for Aamir
BOLLYWOOD actor Aamir
Khan has landed in a legal
tangle. The star has been
booked for obscenity for
posing almost nude for
publicity of his forthcoming
film PK. Bollywoods Mr
Perfectionist poses in the
buff in the poster, with an
old tape-recorder as a prop
covering his front. Manoj
Kumar, a lawyer, has moved
the court against the star,
charging that the obscene
poster would incite sexual violence and
encourage obscenity.
Dearth of judges
THE higher judiciary in India is plagued by
a unique crisis. High courts across the
country are finding it hard to get credible
lawyers for the elevation as high court
judges, if vacancies in the high courts are
any indicators. There are very few
recommendations from the Supreme
Court collegiums on appointing judges.
There are at least 270 vacancies across 24
high courts. The situation is worse in the
subordinate judiciary, where there are
more than 4,300 vacancies.
The problem faced by the SC
collegiums in recommending names for
judgeship was the lack of availability of
senior advocates with integrity!
75
THE New York Times (NYT)
became the first major mainline
newspaper to run its first ever full-
page marijuana ad, just weeks after
it called for legalization of the drug
in the US.
The Just Say Know ad in the
Sunday edition of the NYT, taken out by
Leafy, a legally operating Seattle-based
Cannabis company, is a pun on the
popular 1980s anti-drug slogan. The ad
reviews a website for cannabis strains. It
refers to the
recently
introduced
Compassionate Care Act, a
bill that allows New York
residents with certain medical
conditions to use medical
marijuana under supervision.
As one of the most authoritative
media outlets in the US, NYTs support for
the legalization of marijuana is a huge
boost to campaigners.
HC VACANCIES
Yelp for weed
Allahabad 70
PUNJAB&HARYANA 21
KARNATAKA 17
MADRAS 16
CALCUTTA 16
ANDHRA PRADESH 15
BOMBAY 10
RAJASTHAN 12
OVERCROWDED compartments and inferior quality
of food come to mind when we think of Indian
railways. But have you had an experience of the
rudeness of the staff?
Amlan Rakshit, who was travelling from Chennai
to Howrah on the Corromandal Express, found that
the pantry staff was overcharging for the food and
not abiding by the menu and price list. Moreover,
the travelling ticket examiner (TTE), mentally
harassed the passengers by making them sit with
unreserved passengers.
Rakshit then filed a complaint with
pgportal.gov.in/grievance.aspx, the governments
public grievance portal. The forum ruled in favor
of Rakshit by directing the railways to pay a
compensation of `50,000 with an additional `400
per day in case of delay.
INSURANCE companies are
often persistent in getting
potential customers to buy
insurance policies from them.
But the very same people
turn a deaf ear to their
customers when the time
comes to settle their claims.
Harpreet Singh Oberoi,
who was working with Mirasu
Marketing, was covered
under a personal accident
policy by Oriental Insurance
Co. When Singh met with an
accident, he suffered 50
percent disability, following
which he lodged a claim of
`1,85,000 along with
bills, prescriptions, slips,
payment receipts etc.
However, when the insurance
company failed to respond to
his claim due to lack of
documents and his employer
refused to be part of the
contract, Singh filed a
complaint in the Jalandar
District Forum.
The forum directed the
insurance company to pay
`1,85,000 and his employer
to pay 9 percent interest,
`5,000 as compensation and
`3,000 as costs.
Claim your rights
CONSUMER WATCH
How can buyers enforce their rights
and seek remedial measures
76
August 31, 2014
Food for thought
Illustrations: Udayshankar
Delayed dues
THE National Consumer
Disputes Rederssal
Commission in its recent
judgment said that between
trading in shares and purchase
of shares as an investment
are different and ruled that
those who invest in shares
are consumers.
Arpita Reddy paid `1 lakh by
cheque and `1.40 lakh in cash
for buying the shares of Venve
Light Metal Ltd. The company
acknowledged her receipt for
the money but did not furnish
the shares or the money. Reddy
lodged a complaint in the
Hyderabad district forum,
seeking a claim of `2.40 lakh,
but it got dismissed. She
appealed to the Andhra
Pradesh Commission, which
however, directed the company
to pay `2.40 lakh along with 9
percent interest from date of
payment and `2,000 as costs.
It also imposed a fine of
`10,000 on the company.
The company moved the
national commission on the
grounds that buying of shares
is a commercial transaction
and therefore outside the ambit
of Consumer Protection Act.
But the commission upheld
Arpitas right as a consumer.
77
Consumer debate
MANOJ K Mishra was travelling to Bangkok from
Delhi with his family on IndiGo on June 5, 2014.
On board, he bought masala tea and snacks
and offered to pay them in Indian rupees.
However, the cabin crew refused, saying they
only accepted US dollars or Thai baht. Mishra
filed a complaint with IndiGo, saying that such
behavior amounted to disrespect of the
Indian currency.
IndiGo responded that as per the provisions of
the Foreign Exchange Management Act (FEMA),
1999, and Regulation 3 of the same act, a
person cannot take or send out of India, Indian
currency notes beyond `10,000. Therefore, even
if one is travelling on a domestic airline which
operates on international routes, he has to pay
for the in-board services in US dollars or in the
currency of the destination country only.
In-flight shopping
says no to `
ALL is not well with SpiceJet Airlines.
Its flight SG 419 plying from Mumbai
to Delhi was delayed by almost five
hours owing to a cockpit signal,
which warned that the AC would not
work. The delay meant that besides
the long wait, passengers also
bought food and drinks which
fetched SpiceJet `15,000 while
airlines are required to serve the
refreshments free if the flight gets
delayed by over two hours. Harsh
Surana, one of the passengers,
complained about the delay and
lack of its intimation by the crew.
The Directorate General of Civil
Aviation (DGCA) directed the airlines
to refund the full fare to all its
passengers and ordered a special
engineering audit of SpiceJet to be
completed within 15 days by the
DGCAs technical team.
IS THAT LEGAL?
A TO Z
OF LAW
legal terminology made easy for you. concluding part of the series
N
egligence: It is the failure to exercise care
towards another person, which a reasonable
person is expected to exercise. It can be through an
act or an omission: either by doing something that
one is not supposed to, or by failing to do something
that one is duty-bound to, and thus causing damage.
For example, Thomas is a contractor, who doesnt
take the requisite safeguards while constructing a
playground. Upon completion, some of the swings
collapse due to shoddy construction and two chil-
dren sustain minor injuries. Thomas has been neg-
ligent and is liable to legal action.
O
biter Dicta: Latin for something which is said
by the way or in passing. It is any judicial
statement which does not refer to or hold relevance
for the question of law being decided. It has no
binding value as precedent and may only be used as
78
August 31, 2014
persuasive in future cases. Any comment made
by the judge, not directly relevant to the ques-
tion of law at hand, are obiter dicta.
P
rima Facie: A Latin term meaning at first
sight. It refers to anything which is appar-
ent from the face of the matter, i.e. from the first
examination or presentation of facts. For exam-
ple, prima facie evidence against a person in
a criminal case would lead to conviction
unless rebutted.
Q
uasi: Latin for as if . A prefix that
refers to something that is not fully as
it appears to be, but might exercise some func-
tions as if they were the actual thing.
Examples include quasi-judicial, quasi-crimi-
nal and quasi-contract.
R
es Ipsa Loquitur: A Latin phrase which
means a thing that speaks for itself . It
refers to a set of facts that do not require further
proof or corroboration to lead to a particular
judgment or result. For example, a load of heavy
bricks has been placed on the roof of an under-
construction building in Noida. Kunal, a pedes-
trian walking by, is injured when a few bricks
that falls due to not being secured properly.
Even though no witnesses saw the load of bricks
falling, it can be satisfactorily established from
the circumstances that the builder is responsi-
ble for Kunals injury.
S
pecial Leave Petition: A residual power of
the judiciary, which allows the Supreme
Court to grant special leave to appeal against
any judgment of any court or tribunal. It is to be
used as a discretionary power, in cases where a
significant question of law is involved or gross
injustice is being done.
T
ort: Derived from the French for wrong, a
tort is any civil wrong or wrongful act
which results in harm to anyone. It is distinct
from criminal wrongs and includes such things
as negligence, trespass and defamation.
U
ltra Vires: Beyond the power or jurisdic-
tion of a particular authority. If an
authority oversteps its boundaries, such action
would be illegitimate by virtue of being ultra
vires. For example, the district consumer forum
has a pecuniary jurisdiction of `20 lakh. This
means that any judgment on a case involving a
larger sum of money is outside its jurisdiction
and therefore ultra vires.
V
icarious Liability: A principle which
holds the master responsible for any acts
of the servant or employee, which are carried
out in the course of employment. For example,
in an operation gone wrong at Varun Med
Hospital, the hospital is vicariously liable for
the negligence of the surgeon, and must com-
pensate the victim.
W
rit Petition: A petition to the high court
or the Supreme Court seeking the
issuance of one of the five writs that such a
court is capable of issuing. For example, if your
family member is arrested arbitrarily by the
police, you may file a petition to the high court
for a writ of Habeas Corpus.
X
: A form of signature on a contract by an
illiterate person.
Y
outhful Offender: A term used in
American courts for juvenile offenders:
offenders who are below the age of majority and
thus must be treated differently by the courts
and often have separate facilities and prisons.
Z
ealous Witness: A witness who is clearly
biased towards the party that calls him or
her on for evidence and gives a very enthusiastic
testimony against the other party involved.
Compiled by Akshat Agarwal
79
IL
NO HOLDS BARRED
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STORIES THAT COUNT
July 15, 2014
` 100
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FOREIGN POLICY
The Indian Ocean dictates
a new strategic doctrine
China looks afresh at India
Musharraf exclusive: Advani
derailed agreement on LoC KERALAS DESPERATE HOUSEWIVES
GOPAL SUBRAMANIUM: POLITICS OVER MERIT?
NAJMAS MUSLIMATICS ONLINE SNOOPING, UNDER SCANNER
Raghu Rais Two Faces Of Fate
NESS M
ESS
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NEW G0VERNMENT:
CHARGE OF THE MODI BRIGADE
28
June 15, 2014
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RISING SEX ADDICTION
the need to track and treat
repeat offenders
US IMMIGRATION FRAUD
how y-by-night operators
dupe miIIionaires
48
34
CONTROVERSIAL
JUDICIAL APPOINTMENTS
WiII Modi accept GopaI
Subramanium and Rohinton
Nariman's eIevation to
Supreme Court?
45
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ALSO
ExcIusive account of
the opuIent IifestyIe and
secret poIiticaI and
corporate connections of
meat exporter and hawaIa
trader Moin Qureshi who
was raided by IT agency
14
Inside

C
ave
Lobby of Qureshi mansion
N
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STORIES THAT COUNT
Ramesh Menons account of Modis war room
JULY 31, 2014
`100
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Budget 2014 is a smorgasbord of snackssmall
feel-good sopsrather than the much awaited
feast of radical measures for national economic reconstruction
BUT W
HERES
THE MAIN DISH?
HERES
JAITLEYS GUJARATI THALI
NN
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gas
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IN
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NNNNNNNNNN
DD
IA
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Budget 2014 is a smorga feel-good sopsrather feast of radical me
economic rec
BUT W
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BUT W
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TTHE MAIN
BUUTTTT WWW
H
JAITLEYSGUJ
JAITLEYS GUJ
`
1
0
0
crore
tribal welfare
`70crore
per smart city
`100crore
madrasas uplift
`100crore

dalit startups
`
1
0
0
crore
kashmiri migrants
`
1
0
0
crore
young India
leadership
program
HOW SUGAR BARONS AND POLITICIANS CON THE PUBLIC
4
SWEETHEART DEALS
Sonia-Rahul and the National Herald scam
EXCLUSIVE
Harrowing saga of 10 stranded Indians on an oil tanker off Sharjah
THE LAW
Executive-judiciary relations nosedive Your birthright to adopt Stopping Uncle Sams snooping on the world
PROBE
Diamond merchants `1,300 crore bank heist
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INDIAS NEW NSA AJIT KUMAR DOVAL
BADAUN: Indias Shame
Gay Rights
Revisited 50
Death Penalty
Still Hanging
Internet Censorship
Off With His Face!
MODIS COWBOY
D
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ES
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W
ITH
M
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47
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STORIES THAT COUNT
Markandey Katju:
The story behind the accusation
August 15, 2014 `100
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Has post-Modi majoritarianism made this
powerful Indian community more insecure?
Why Ukraine and Gaza
matter to you
top cops admit victimization
are indians ocking to isiI jehad?
poIice station reaches out to minorities
ALSO
Badaun Rape: Covering Up
for Whom?
Dhoti, Kapada aur CIub
AssauIt on NGOs
Amway or Scamway? R
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DISTRUSTING
MUSLIMS
EDITORIAL
Retired Supreme
Court judges
ouL Lho Iaw
hame: ...................................................................................... Age: ............................. Sex: .......................................
Address: ........................................................................................................................................................................
.......................................................................................................................................................................................
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Cily: ................................................................. Slale: ..................................................... Fin: ......................................
Fhone Res.: ...................................... 0ice: ...................................... email: ..............................................................
Enclosed 00/Cheque ho.: .............................. 0aled: ...................... 0rawn: ........................... or `: .........................`
Card ho.: ............................................................................. Signalure: ........................................................................
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1. Born and bred, hale
and hearty, but home
and ......
A: safe
B: happy
C: dry
D: easy
2. His boss is as greedy
as a ......
A: pig
B: dog
C: grocer
D: policeman
3. You do NOT sleep
like a. ....
A: baby
B: top
C: log
D: rhino
4. NOT said when
drinking.
A: Cheers!
B: Down the hatch!
C: Bottoms up!
D: Breathe again!
5. What does French
expression au fait
mean?
A: Ill-fated
B: Fully informed
C: Goodbye
D: Already done
6. What's the meaning
of ignominious?
A: Shameful
B: Glorious
C: Inflammable
D: Ignorant
7. A drifter is an .......
person.
A: aimless
B: overzealous
C: ambitious
D: avaricious
8. If you have a purple
heart, you are ......
A: kind
B: jovial
C: brave
D: timid
9. Painted woman is a
euphemism for a
........
A: danseuse
B: prostitute
C: poetess
D: wife
10. One who is fond of
eating is a .......
A: glutton
B: gourmet
C: gourmand
D: greedy gut
11. Have you heard of
internet slang TBH?
A: To Be Honest
B: Travelling Back
Home
C: Think Beyond Home
D: Thighs Bosom Hips
12. Tick the mis-spelt
word.
A: Accidently
B: Plaintiff
C: Receipt
D: Superintendent
13. A Sisyphean task is
.........
A: enjoyable
B: easy
C: great
D: endless
14. Opposite of zenith.
A: Peak
B: Nadir
C: Hell
D: Earth
15. Express ignorance
by exclaiming this.
A: Bag that!
B: Holy smoke!
C: Big deal!
D: Search me!
16. An old car
A: Hatchback
B: Sin-bin
C: Banger
D: Pussy-wagon
17. Proverb: Marry in
haste and repent.
A: at leisure
B: soon after
C: too soon
D: for ever
18. Diamond anniver-
sary is completion of
..... years.
A. 60
B. 15
C. 75
D. 125
19. Which body part is
affected in otitis?
A: eye
B: ear
C: throat
D: nose
20. To acquiesce is to...
A: pressurize
B: accept
C: implement
D: conceal
1 . D r y
2 . p i g
3 . r h i n o
4 . B r e a t h e a g a i n !
5 . F u l l y i n f o r m e d
6 . S h a m e f u l
7 . a i m l e s s
8 . b r a v e
9 . p r o s t i t u t e
1 0 . g o u r m a n d
1 1 . T o B e H o n e s t
1 2 . A c c i d e n t l y
1 3 . e n d l e s s
1 4 . N a d i r
1 5 . S e a r c h m e !
1 6 . B a n g e r
1 7 . a t l e i s u r e
1 8 . 7 5
1 9 . e a r
2 0 . a c c e p t
SCORES
0 to 7 correctYou need
to do this more often.
8 to 12 correctGood,
get the scrabble
board out.
Above 12Bravo!
Keep it up!
ANSWERS
have fun with english.
get the right answers.
play better scrabble.
By Mahesh Trivedi
W
O
R
D
L
Y
W
I
S
E
textdoctor2@gmail.com
81
Photos: UNI
GAY AND HAPPY
Lesbian motorcycle
Club Dykes on
Bikes painted the
town red by
kick-starting the
San Francisco Gay
Pride Festival
in California
BUNDLE OF JOY
It is happiness
personified when a
beaming father
holds up his
overjoyed toddler
in New York.
CELEBRATIONS
GALORE
More than 4,000
students took their
graduation parade
to the streets in
Ljubljana breaking
into a mass dance
and then freezing
the memory
with selfies.
CHINESE DDLJ?
The breath-taking
view of the canola
flower field in
Kuandian county,
located near the
China-North Korea
border, inspires
some to capture
that moment of
sheer happiness.
POSING
WITH JAWS
This 3D painting at
HK 3D Museum in
Hong Kong helps
many carry home
pictures that amus-
es their dear ones.
PEOPLE/
shades of happiness
N
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July 15, 2014
` 100 www.indialegalonline.com
S
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A
R
D

H
O
!
FOREIGN POLICY
The Indian Ocean dictates
a new strategic doctrine
China looks afresh at India
Musharraf exclusive: Advani
derailed agreement on LoC
KERALAS DESPERATE HOUSEWIVES
GOPAL SUBRAMANIUM: POLITICS OVER MERIT?
NAJMAS MUSLIMATICS
ONLINE SNOOPING, UNDER SCANNER
R
a
g
h
u
R
a
is

Tw
o
F
a
c
e
s
O
f F
a
te
N
E
S
S
M
E
S
S
In
v
ita
tio
n
P
ric
e
`
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Ramesh Menons
account of Modis war room
JULY 31, 2014
`100
I
Invitation Price
`50
Budget 2014 is a smorgasbord of snackssmall
feel-good sopsrather than the much awaited
feast of radical measures for national
economic reconstruction
B
U
T
W
H
E
R
E
S

T
H
E
M
A
IN
D
IS
H
?
H
E
R
E
S
JAITLEYS GUJARATI THALI
gasb
er th
eas
econ
H
W
H
H
E
A
IN
HH
UJA
UJA
Budget 2014 is a smorga
feel-good sopsrather
feast of radical mea economic rec
B
U
T
W
H
B
U
T
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elfare
`70crore per smart city
`100crore
madrasas uplift
`100crore

dalit startups
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HOW SUGAR BARONS AND POLITICIANS CON THE PUBLIC
46
S
W
E
E
T
H
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A
R
T
D
E
A
L
S
Sonia-Rahul and the
National Herald scam
EXCLUSIVE
Harrowing saga of 10
stranded Indians on an
oil tanker off Sharjah THE LAW Executive-judiciary
relations nosedive
Your birthright to adopt
Stopping Uncle Sams
snooping
on the world
PROBE Diamond merchants
`1,300 crore bank heist
R
N
I N
o
. U
P
E
N
G
/2
0
0
7
/2
5
7
6
3
T COU
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.com .com .com
s

FF
aaa
nvi vit vitatio
`
PPPOL
EE
A
E
A
P
E
NDIA EGAL
L
STORIES THAT COUNT
Markandey Katju:
The story behind the accusation
August 15, 2014 `100
I
In
v
ita
tio
n
P
ric
e
`
5
0
Has post-Modi majoritarianism made this
powerful Indian community more insecure?
Why Ukraine and Gaza
matter to you
top cops admit victimization
are indians ocking to isiI jehad?
poIice station reaches out to minorities
ALSO
Badaun Rape: Covering Up
for Whom?
Dhoti, Kapada aur CIub
AssauIt on NGOs
Amway or Scamway? R
N
I N
o
. U
P
E
N
G
/2
0
0
7
/2
5
7
6
3
DISTRUSTING
MUSLIMS
EDITORIAL
Retired Supreme
Court judges
ouL Lho Iaw
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India Legal: Issue 31 August 2014

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NDIA EGAL

The juveniles in conflict

As against 27,936 IPC

The highest increase in

Out of the total juveniles

Children living with

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