India Legal 15 July 2016

NDIA EGAL L July 15, 2016 `100

www.indialegalonline.com

I STORIES THAT COUNT

64 76Morphine Mercy Legal Tangles after Brexit By Shobha John By Sajeda Momin

Neeta Kolhatkar Beach security still at sea 55

Dinesh C Sharma Contentious water bills 46

Vivian Fernandes The GST e-commerce muddle 60

Forest Policy Groping in the dark 40

Tumult against TALAQWomen reach out to the Supreme Court to ban the age-old practice that is against the Quran, the constitution and natural justice By Ramesh Menon 24

tated with the ruling Congress party to bring inlegislation to negate the apex court’s ruling. Thistriggered a chain of political events and the much-publicized “Hindu backlash”, leading to the emer-gence of a rejuvenated Bharatiya Janata Party.

Says Managing Editor Ramesh Menon: “Therehas been incessant churning among Muslim wo-men since then, and the cover story on ShayaraBano whose petition challenging instantaneoustriple talaq has been accepted by the Supreme Court, is one example of increasing numbers ofIndian Muslim women finding the courage to fightfor their legal rights in matters related to marriageand divorce. No more, they say, shall they suffer insilence.”

Thou shalt not suffer in silence when the law ison thy side, also seems to be the message from theSupreme Court in the case of disabled and physi-cally challenged persons who are treated merci-lessly by airlines. Passengers are de-planed, almostthrown out, barred from entry, humiliated. Act-ually, this is one of the most appalling storiesbrought to my attention through this issue of themagazine by Nayantara Roy. Read the first para ofthis story and weep: “In a shocking incident onFebruary 19, 2012, Jeeja Ghosh, a passenger onSpicejet flight SG 803 from Kolkata to Goa, wassummarily de-boarded as the pilot of the flightdeemed her a risk to the safety of other passengers.Why? She had cerebral palsy.”

The redeeming feature of this is that she foughtback and the Court ordered the airline to pay her`10 lakh as compensation. The judgment citedseveral instances of other differently abled peo-ple—including the visually impaired—who weremaltreated by airlines.

LETTER FROM THE EDITOR

OMETIMES by default, often by design—especially when the editors have enoughadvance time to plan ahead (which theyrarely have the luxury of doing while brin-ging out editions of magazines every other

week on the net and in print)—we are able to putto bed an issue with thematic synchronicity. Thestories may be different but are yet held togetherby a delicate weave between the cover pages of themagazine. The current issue of India Legal, I bel-ieve, bears this stamp. Almost every story it con-tains has a solid developmental, environmental orsocial change value affecting the lives of women,ordinary people and consumers caught in theintricacies of socio-economic system which canwreak havoc with human existence unless chal-lenged by the law or unraveled by a simple act ofgood governance.

Take our cover story, for instance. It touches onan extremely sensitive issue—the religious cus-toms and social mores of the Muslim community,India’s largest minority. The subject is talaq(divorce) or, rather, “triple talaq” in which by thesheer utterance of this word thrice in a row a mancan instantaneously divorce his wife and cast herinto penury.

This is simplifying the matter, and you mustread the entire story to come to grips with the larg-er picture on this canvas. But suffice it to say thatone of the largest socio-religious upheavals Indiaexperienced after attaining independence centeredon this problem. In the mid 1980s, the SupremeCourt’s Shah Bano decision granting alimony to adivorced woman so alienated a huge section of theMuslim community which considered it an infr-ingement on personal law that it successfully agi-

A MOVEABLE FEAST

INDERJIT BADHWAR

S

4 July 15, 2016

The storiesin this issueof IndiaLegal maybe differentbut are yetheld togetherby a delicateweavebetween the coverpages of themagazine.

are run purely for commercial considerations”.There is some light at the end of this very dark tun-nel—the Clinical Establishment Act of 2010 whichregulates private practice. But even today, the Actis not operational because standards have not beenfinalized. While huge legal gaps need to be filled,action may be looming on the horizon, thanks tothe power of the book penned by doctors ArunGadre and Abhay Shukla.

Other stories in the issue which point to changeand transition on social and environmental issuesinclude a reversal by the government of an ill-con-ceived policy which would blindly gift reserve for-est land to private developers; a long overduereport from the Consumer Education and Res-earch Center, Ahmedabad, on clearing the logjamof cases which clog the judiciary; the Delhi HighCourt’s admonition to criminal courts to stopharassing witnesses through needless postpone-ments; the Supreme Court’s solid pro-health diktatdirecting tobacco companies to display biggerhealth warnings on their products; and last butnot least, a good-news story about how Pakistan’sjudiciary and Lawyer’s Movement, 2007-2009,which played a seminal role in transforming theSupreme Court’s role from junior partner to themilitary and bureaucracy in times of crisis to a rel-atively autonomous body exercising power.

And what about the pain and suffering of sickpatients? Can the law offer them any legal succor?It can. And it has acted. Deputy Managing EditorShobha John chronicles stories of patients in ago-nizing pain with end-stage cancer or other debili-tating conditions whose horrible torment has beeneased somewhat by the administration of opiateslike morphine and other pain killers. Even thoughopioids make life more bearable for those sufferingfrom pain, stringent jail terms and fear of addic-tion means that few doctors prescribe them evenduring the process of palliative care. A leadingdoctor tells her that most doctors “have not evenseen a tablet of morphine”.

But there is a welcome amendment to theNarcotics and Psychotropic Substances Act whichadopts a new category of “essential narcotic drugs”in Section 2 (viiia) which notifies these drugs asapplicable uniformly in the country. This welcomestep negates the cumbersome necessity for obtain-ing multiple state clearances.

Patients’ rights is a subject of a new bookDissenting Diagnosis reviewed and ana-lyzed by Executive Editor Ajith Pillai. It

deals with the abysmal state of private medicalpractice—or rather malpractice—in India. Itreveals, he writes, “a shocking story of medicalmalpractice, gross negligence and financialexploitation of patients at those hospitals which [email protected]

5INDIA LEGAL July 15, 2016

JULY 15, 2016

Turbulent FlightThe apex court has pulled up SpiceJet for forcibly deboarding a disabled flyer and has asked it to pay her a compensation of `10 lakh.NAYANTARA ROY

Three Times UnjustThe abhorrent practice of triple talaq is against the Quran and the Indianconstitution and women’s rights activists have been urging the SupremeCourt to ban it. RAMESH MENON

24LEAD

12

Pandora’s BoxWill the Bombay High Court’s decision to okay Udta Punjab emasculatethe Censor Board and open the floodgates to sleazy, violent and ugly cinema? BIKRAM VOHRA

34

16

VOLUME. IX ISSUE. 21

OWNED BY E. N. COMMUNICATIONS PVT. LTD.A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309

Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411e-mail: [email protected]: www.indialegalonline.com

MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri,Mumbai- 400058

RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002.

LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj,Lucknow-226001.

PATNA: Sukh Vihar Apartment, West Boring Canal Road, NewPunaichak, Opposite Lalita Hotel, Patna-800023.ALLAHABAD: Leader Press, 9-A, Edmonston Road,

Civil Lines, Allahabad-211 001.

For advertising & subscription [email protected]

CFOAnand Raj Singh

VP (HR & General Administration)Lokesh C Sharma

Circulation ManagerRS Tiwari

Published by Prof Baldev Raj Gupta on behalf of E N Communications Pvt Ltd and printed at Amar Ujala Publications Ltd., C-21&22, Sector-59, Noida. All rights

reserved. Reproduction or translation in any language in whole or in part without permission is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd . Opinions of

writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd . The Publisher assumes no responsibility for the

return of unsolicited material or for material lost or damaged in transit. All correspondence should be addressed to E N Communications Pvt Ltd .

Editor Inderjit Badhwar

Managing EditorRamesh Menon

Deputy Managing EditorShobha John

Executive EditorAjith Pillai

Bureau ChiefsNeeta Kolhatkar, Mumbai

Vipin Kumar Chaubey, LucknowBN Tamta, Dehradun

Principal CorrespondentHarendra Chowdhary, Mathura

ReportersAlok Singh, Allahabad

Gaurav Sharma, VaranasiAssociate Editors

Meha Mathur, Sucheta DasguptaDeputy EditorPrabir BiswasStaff Writer

Usha Rani DasSenior Sub-Editor

Shailaja ParamathmaSub-Editor

Tithi MukherjeeArt Director

Anthony LawrenceDeputy Art Editor

Amitava SenSr Visualizer

Rajender KumarGraphic Designer

Ram LaganPhotographer

Anil ShakyaPhoto Researcher/News Coordinator

Kh Manglembi DeviProduction

Pawan KumarHead Convergence Initiatives

Prasoon Parijat Convergence Manager

Mohul Ghosh Technical Executive (Social Media)

Sonu Kumar SharmaTechnical Executive

Anubhav Tyagi

No Smoke without FireLast month’s SC order directing tobacco companies to display biggerhealth warnings on products is a shot in the arm for anti-tobacco campaigners. USHA RANI DAS

SUPREME COURT

MY SPACE

6 July 15, 2016

REGU

LARS

Edit ...............................................................................4Quote-Unquote ............................................................8Ringside .....................................................................10Supreme Court ...........................................................21Courts .........................................................................22Is that Legal? ..............................................................23National Briefs ......................................................33, 39Campus Update.........................................................59Figure It Out ...............................................................63International Briefs......................................................69

Well-meaning but vague, the National Water Framework Billand Model Bill for Conservation, Protection and Regulation ofGroundwater leave key decisions to the central government.DINESH C SHARMA

Post the referendum to leave the EU, Britain is caught in legal tanglesthat must be unraveled to ensure a fresh start for it. SAJEDA MOMIN

Has Brexit Led to Bregret? 76

Follow us on Facebook.com/indialegalmediaand Twitter.com/indialegalmedia

46

The center has hastily disowned its draft forest policywhich, if passed, would havecleared the decks for commercialization at the costof ecology. RAMESH MENON

40Area of Darkness

Troubled Waters

56

A new book by two doctors calls for the implementation of theClinical Establishment Act to regulate the private medical sectorand stop the financial exploitation of patients. AJITH PILLAI

Healing the Health Sector 50

ACTS & BILLS

A report by the Consumer Education and Research Centre suggests ways to clear the logjam of cases that clogs our judiciary.Is the government listening? KIRTI BHATT

Reforms without tears

GLOBAL TRENDS

Though the Narcotic Drugs and Psychotropic Substances Act hasbeen amended to make morphine accessible to those suffering fromextreme pain, jail terms and fear of addiction by patients stop doctorsfrom prescribing it. SHOBHA JOHN

Shoot Me Up 64

80

MEDICINE

Despite a top court order to the contrary, Bihari migrants inBangladesh continue to live in misery, perceived as they are asstranded Pakistani citizens. PRAKASH BHANDARI

The Nowhere People

Cover Design: ANTHONY LAWRENCECover Picture: GETTY IMAGES


DIPLOMACY

LEGAL EYE

The government has outsourced tax collectionto e-commerce cos. But itis a moot question whetherits benefits will be passedon to the customer.VIVIAN FERNANDES

Fillip forE-Biz

60MARKETS

70Christophe Jeffrelot and Philip Oldenburg examine the challengesthat our neighbor faces from within and outside, and the role of thejudiciary in shaping polity in the country

Pak’s Judicial MilestonesBOOKS

While I was open to seeing thesedevelopments (new monetary policyframework and cleaning up of bankbalance sheets) through, on duereflection, and after consultation withthe government, I want to share withyou that I will be returning to academia... I will, of course, alwaysbe available to serve my countrywhen needed.

—RBI Governor Raghuram Rajan, in his message to RBI staff, announcing his exit

Mother Teresa was part of aconspiracy to convertHindus to Christianity.Hindus were targeted in thename of doing service andthen converted by her.

—Yogi Adityanath at a religiousmeeting in Basti, in

The Economic Times

We are losing one of the most skillful financial economic thinkers inthe world. It is sad for the countryand it is sad for the government ofthe country too. RBI is not a completely autonomous institution.

—Economist Amartya Sen, on RBIGovernor Raghuram Rajan’s decision not to

ask for a second term, to a private TV channel

To share a secret, I alwayswanted to be a fighter pilot butwhen we joined the option wasnot there. So when it came tous in December 2015, I knew Iwas going to grab it with both

my hands. —Bhawana Kanth, one ofthe three women combat

pilots recently inductedin the Indian Air Force,

in India Today

While shooting, during thosesix hours, there’d be so muchof lifting and thrusting on theground involved… When Iused to walk out of the ring,after the shoot, I used to feellike a raped woman. Icouldn’t walk straight.

—Salman Khan, relating hisexperience while shootingfor Sultan, to mediapersons

8 July 15, 2016

Yoga is bringing the rhythmin life. Yoga is feeling theconnection with oneself.And with everyone around.Yoga is aspiring for thehighest goal of the worldas one family. And unitywith the infinity.

—Art of Living Foundationfounder Sri Sri Ravi Shankar, whileInaugurating the second edition of

the International Yoga Day, at theEuropean Parliament, in Brussels

QUOTE-UNQUOTE

People giving me unasked for advise ofdiscipline and restraint don’t realize thatif I disregard discipline there would bea bloodbath.—BJP MP Subramanian Swamy, onfeelers that senior BJP members

were not happy with his intemperate remarks againstfinance ministry mandarins,

in The Times of India

It is difficult to make our material condition better by thebest law, but it is easy enough to ruin it by bad laws.

—Theodore Roosevelt, US president from 1901-1901

VERDICT

10 July 15, 2016

Aruna

The apex court recentlyasked SpiceJet to pay a

compensation of `10 lakh toa disabled passenger it

had de-boarded. Will thispave the way for a more

humane treatment of the differently-abled? By Nayantara Roy

Fight the FlightI

N a shocking incident onFebruary 19, 2012, Jeeja Ghosh, apassenger on SpiceJet flight SG803 from Kolkata to Goa, wassummarily de-boarded as thepilot of the flight deemed her arisk to the safety of other passen-

gers. Why? She had cerebral palsy.She is not the first disabled passenger to

be treated thus. This, when she had checkedin at the airline counter without any assis-tance and had gone through the security pro-cedures and walked into the aircraft on herown. This head of Advocacy and Disability

SUPREME COURT/ Disabled Rights

12 July 15, 2016

GUTSY CHANGEMAKERJeeja Ghosh (right) won a

legal battle against SpiceJetfor de-boarding her on the

flimsy ground that she suffersfrom cerebral palsy

Facebook

Studies at the Indian Institute of CerebralPalsy in Kolkata (IICP) was physicallyremoved from the plane in a humiliatingmanner. Ironically, the conference she wassupposed to attend in Goa—North-SouthDialogue IV—had a special focus on peoplewith disabilities and their families. Needlessto say, Ghosh missed the conference. For the“inconvenience” caused, the airline offered torefund the fare, after deducting `1,500 ascancellation fee. How is that for sensitivity?

PAY DAMAGESBut spunky Ghosh along with NGO ADAPT(Able Disable All People Together) filed a PILin the Supreme Court. And on May 12, 2016,the apex court gave a judgment that wouldgladden the hearts of many. In the JeejaGhosh and Ors vs Union of India and Ors,the judges ordered SpiceJet to pay damagesof `10 lakh to Ghosh for the trauma inflictedon her. The Court went into a detailed reex-amination of the Directorate General of CivilAviation’s Civil Aviation Requirements(CAR) in respect of Carriage by Air ofPersons with Disability and/or Persons withReduced Mobility.

The judges emphasized the need tochange how disability should be perceived asopposed to how it is perceived. It said that intraditional societies, disability has been per-ceived as a health and welfare issue. “The dis-abled persons are viewed as abnormal,deserving of pity, and not as individuals whoare entitled to enjoy the same opportunitiesto live a full and satisfying life as other mem-bers of society. This resulted in marginalizingthe disabled persons and their exclusion bothfrom the mainstream of the society andenjoyment of their fundamental rights andfreedoms… Because the emphasis is on themedical needs of people with disabilities,there is a corresponding neglect of theirwider social needs, which has resulted insevere isolation for people with disabilitiesand their families.”

The judgment cited instances of other dif-ferently abled persons who were mistreatedwhen flying—“Mr Tony Kurian was repeated-ly denied the right to purchase tickets on anIndigo flight because he is visually impaired.Ms Anilee Agarwal was recently forced to

sign an indemnity bond before she could flyfrom Delhi to Raipur on Jet Connect, threat-ened with being ‘body-lifted’ by four maleflight crew members, and finally ‘throwndown the steps’ in an aisle chair when sherefused to be carried by hand. Mr NileshSingit was told by a SpiceJet captain that hewas not allowed to fly with his crutches, andhas been asked to sign indemnity bonds onnumerous occasions.”

INSENSITIVE LOTThere have been other similar instances else-where in the world. According to newsreports, in August 2015, a 32-year-old dis-abled British passenger was asked to get off aBritish Airways flight from Heathrow to theUS for “health and safety reasons”. EmilyLadau was flying from New York toMinnesota to attend a conference on disabil-ity. Her wheelchair had been checked in, butwhen the flight landed, the wheelchair could-n’t be found. Blissfully unaware of theabsurdity, airline personnel actually askedher to walk to the baggage claim to locate it!Worse still, another passenger, D’Arcee


Airline staff is cognizant of the pilot’s authorityto de-board a passenger he may consider ahazard. But CAR 4.1 clearly states “no airlineshall refuse to carry persons with disability”.

TURBULENCESpiceJet fliers stranded inChennai airport followingthe airline temporarilygrounding its flights

UNI

Neal, suffering from cerebralpalsy, had to crawl off hisflight because UnitedAirlines personnel delayedbringing him a wheelchair.

Airline staff is fully cog-nizant of the pilot’s authorityto de-board a passenger hemay consider a hazard.However, CAR 4.1 categori-cally states: “No airline shallrefuse to carry persons withdisability or persons withreduced mobility and theirassistive aids/devices, escortsand guide dogs includingtheir presence in the cabin.” CAR 4.6 whichsays that many persons with disabilities donot require constant assistance for theiractivities and therefore, if the passenger“declares independence in feeding, commu-nication with reasonable accommodation,toileting and personal needs, the airlinesshall not insist for the presence of an escort”appears to have been forgotten that day.

Ghosh did not require assistance, apartfrom some help with her baggage. She didnot have any aids/devices, escorts or guide

dogs. As a young studentstaying in a hostel in DelhiUniversity, she had travelledall over the city in DTC buses.Therefore, nothing wouldhave prepared her for thereaction of airline staff.Cerebral palsy only makesher speech unclear and hermovements strained.

In fact, cerebral palsy isdefined in the Persons WithDisabilities Act, 1995 as “agroup of non-progressiveconditions of a person char-acterized by abnormal motor

control posture resulting from brain insult orinjuries occurring in the pre-natal, perinatalor infant period of development”. Lack ofknowledge on the part of airline staff andtheir fear of the unknown caused them todeny a passenger her fundamental right toequality under Article 14 and her right to livewith dignity.

An old school teacher of Jeeja who did notwant to be identified, explains that cerebralpalsy conditions vary from person to person.One person may lurch a little while walking,

14 July 15, 2016

Laws cited In the Jeeja Ghosh case, thefollowing laws were cited:

Indian:� Constitution, Articles 14(Right to equality) and 21(Right to life)� The Civil AviationRequirements 2008 underthe Carriage by Air Act,1972 were amended as perthe Ashok KumarCommittee Report and arenow the Civil AviationRequirements, 2014 � Persons with Disabilities(Equal Opportunities,Protection of Rights and Full Participation) Act, 1995

International:� United NationsConvention on the Rightsof Persons with Disabilities(UNCRPD), (which Indiaratified in 2007). Articles 5,9, 9(2)� The Vienna Conventionon the Law of Treaties,1963� Biwako MilleniumFramework for ActionTowards an Inclusive,Barrier-Free and Rights-Based Society for PersonsWith Disabilities in Asia andthe Pacific, published in2002 and signed by India

WE HAVE A VOICEDisabled persons

demand inclusion of theirrights in election

manifestos of variouspolitical parties

SUPREME COURT/ Disabled Rights

UNI

IL

to make changes to accommodate some of these.

The Court had the last word on thisissue. It said: “What non-disabled people donot understand is that people with disabili-ties also have some rights, hopes and aspira-tions as everyone else. They do not want todepend on others. They want to brave theirdisabilities. They want to prove to the worldat large that notwithstanding their disabili-ties they can be the master of their ownlives. They can be independent. They can beself-reliant. They do not want sympathies of non-disabled. They want to be trusted.They want to be treated as valued memberof the society who can contribute to the development and progress of the society. For this they want the proper envi-ronment to grow. Our society automaticallyunderestimates the capabilities of peoplewith disabilities. People with disabilitieswant this change in the thinking of non-dis-abled. It is the thinking of Disability RightsMovement, USA that it is not so much thedisabled individual who needs to change,but the society.”

another may not be able to walk at all. Therecan be lack of clarity in speech which couldbe accompanied by uncontrolled motormovements. She said: “All of us have ourpeculiarities, who is to say we’re normal?”Incidentally, Ghosh has yet to receive thecompensation from SpiceJet, though the air-line has two months to comply.

ASHOK KUMAR COMMITTEEIn an attempt to close the “gap between thelaw and reality”, at least in the carriage byair of disabled passengers during the courseof the litigation, a committee was appointedby the government to examine and amendCARs. The “Ashok Kumar Committee”made several suggestions to improve theCARs such as widening the definition ofpersons with reduced mobility, establish-ment of Standard Operating Procedures forall service providers and adequate training and sensitization of not only airlinestaff but also security personnel. Manyproblems also occur during security checksespecially with assistive devices, batteryoperated wheelchairs, web-enabled book-ing, in-flight briefing and evacuation ofsuch persons. The Committee suggestedthat a mechanism for grievance redressal be implemented.

Some of the Committee’s suggestions,not addressed in the amended CAR 2014,were brought to the notice of the Court.Eventually, it directed the respondents


Ghosh did not require assistance, apart fromsome help with her baggage. As a youngstudent staying in a hostel in DU, she hadtravelled all over Delhi in DTC buses.

Regarding the incident of JeejaGhosh, a SpiceJet spokesman

told India Legal that the incident took place under the previous manage-ment and that the airline follows DGCAand International Civil AviationOrganization rules.

He added that the pilot has the dis-cretion to de-board unaccompaniedpassengers with disability if he feelsthat there may be a problem. “Over thelast two years, via the yearly, scheduledCRM (Crew Resource Management)

classes, all pilots and cabin crew ofSpiceJet have been sensitized on howto interact with and assist ‘DifferentlyAbled Passengers’ under ICAO guide-lines.” These include visually impaired,mobility impaired, hearing impaired andthose with cerebral palsy. “The creware taught how to facilitate the journeyof these passengers so that they havea comfortable flight,” he said.

As to when Jeeja would get com-pensation, he said they would hand itover to her soon.

“SpiceJet follows DGCA rules”

VINDICATED!Ghosh relaxes athome with her mother

Facebook

SUPREME COURT/ Tobacco Menace

PICTORIAL warnings on itsproduct packaging alwaysmade the tobacco industrysee red. So it came as nosurprise that alarm bellsstarted ringing after theMay 4, 2016 Supreme Cou-

rt directive to tobacco manufacturing com-panies to comply with the rule that made itmandatory to display health warnings onboth sides of the tobacco products, covering

The SC’s order last month directingtobacco companies to display biggerhealth warnings on their products is a

shot in the arm for those campaigningagainst nicotine abuse. The industry’s

plea against it has very few takersBy Usha Rani Das

Bigger Pictures,Better Warnings

Anil Shakya

16 July 15, 2016

nearly 85 percent of the packaging area. Theapex court bench of Justice PC Ghose andJustice Amitava Roy observed: “Tobaccomanufacturers have a duty towards the soci-ety… bigger pictorial warnings on tobaccoproducts are necessary to educate people.They should know about its effect on health.”It also vacated all stay orders by other courtsvis-a-vis 85 percent pictorial warnings.

The Supreme Court’s directive came fol-lowing a petition filed by the KarnatakaBeedi Association for a stay on a governmentnotification of 2014 which should have comeinto effect from April 2016, but was stalleddue to the legal hurdles put up by the indus-try. The tobacco manufacturers’ argumentwas that the trademark and brand nameswould become too small on a pack dominat-ed by 85 percent health warnings. This, inturn, would impact sales and the lives of mil-lions dependent on the tobacco trade forlivelihood. The Beedi Association’s plea wasthat the warnings be restored to cover only40 percent of the packaging size. This, inci-dentally was the norm till the Cigarettes andOther Tobacco Products (Packaging andLabelling) Amendment Rules 2014 was noti-fied which enhanced the size of the warnings.

PLEA DISMISSEDThe Court, while dismissingthe Karanataka Beedi Asso-ciation’s plea, made thisobservation: “Tobacco man-ufacturers have a duty to-wards the society… biggerpictorial warnings on tobaccoproducts are necessary toeducate people. They shouldknow about its effect onhealth.” The government’sjustification for increasingthe size of the warnings hasbeen one that has foundmuch approval from anti-tobacco and health activists.Their point is that larger pictorial warnings would bethe only way to effectivelycommunicate the hazards of tobacco abuse to the illiterate.

In fact, the October 15, 2014, governmentnotification makes the point that the visualwarning must dominate the written one: “Apictorial representation of the ill effects oftobacco use on health shall be placed abovethe textual health warning, covering 60 per-cent of the principal display area of the pack-age.” The amended rules immediately trig-gered a controversy on whether larger picto-rial warnings on cigarettes, gutkha, beediand other tobacco products can deterabusers? The apex court seems to haveresolved the argument keeping in mind “thelarger public interest”.

The Court’s decision was a victory of sortsfor the anti-tobacco campaigners. As for theindustry, it has been fighting a losing battleever since 2009 when a government notifica-tion made pictorial warnings mandatory. Ayear before that smoking in public places wasbanned across the country. The argumentput forward by the industry has alwaysfocussed on the economic implications of anyfall in their business.

INDUSTRY’S RESISTANCESince 2009, the industry has alleged that anykinds of pictorial warnings would adverselyaffect the livelihoods of tobacco growers

SPREADING THE MESSAGEDoctors at an awareness campon “World No Tobacco Day”, in Patna

The industry’sclaim that pictorial warnings wouldadversely affectthe livelihoods of tobacco growers andworkers is specious. Theproduction oftendu, beeditobacco, and cigaretteshas actuallygone up.

UNI

INDIA LEGAL July 15, 2016 17

and workers. It has been repeatedly stressedthat as the Indian beedi industry is the third-largest employer after agriculture, its declinewould lead to mass unemployment. But thisargument seems to be specious as the pro-duction of tendu, beedi tobacco, and ciga-rettes has increased year on year, even afterprinting of pictorial images on packagingstarted.

“The arguments given earlier by tobaccocompanies are all baseless now,” BinoyMatthew of Voluntary Health Association ofIndia (VHAI) told India Legal. He also rub-bished the plea by the industry that illicittrade of tobacco products has increased sincepictorial warnings were introduced. “This is amyth perpetuated by the industry. Factorsthat determine illicit trade include the gov-ernment’s inability to enforce tax measuresand collect duties, the ease and cost of smug-gling tobacco into a country and the extent ofthe tobacco industry’s participation in suchtrade activities. As a matter of fact, promi-nent pictorial warning on tobacco productswill enable enforcement agencies to identifyillegal/smuggled cigarettes and help themseize non-compliant products,” said Binoy.

A recent study by the All India Institute of

“Prominent pictorial warningson tobacco products willenable enforcementagencies to identifyillegal/smuggledcigarettes andhelp them seizenon-compliantproducts.”—Binoy Matthew ofVoluntary HealthAssociation of India


A look at thecourt verdicts,regarding the

pictorial warnings, over

the years:

2003: Under theCigarettes and otherTobacco Products Act,2003, (COTPA), everytobacco product is tohave a specified healthwarning that is legible,prominent and conspicu-ous in size and color andin the same language asthat on the tobacco pack.

2006: The government saysthat each pictorialwarning must includeskull and bone signson the pictures.Warnings shouldcover 50 percent ofthe principal display area/s of thepack. Warningsshould be rotatedevery 12 months.

Use of misleadingterms (light, mild, ultra-light) anddescriptors wereprohibited. Health warnings to beimplemented byFebruary 2007.

2007: The indus-try objects to the“dead body” picture.A Group of Ministers(GoM) headed bythen external affairsminister PranabMukherjee fails tocome to a final deci-sion on the “skull

and crossbones”. Itis made optional.

Later in 2007,the “dead body”picture is removed,and so is the “skulland crossbones”symbol from alllabels. The GoMalso tries to dilutethe earlier “repul-sive” pictures andsuggestssofter/milder pic-tures.

Picturepolitics

Anil Shakya

18 July 15, 2016

Medical Sciences quoted in the journal,Tobacco & Nicotine Research, says that pic-torial warnings do have a positive effect indeterring smoking, especially among theyoung. According to Binoy, large and promi-nent health warnings have also shown to be acost-effective means of increasing publicawareness of the health effects of tobacco useand in reducing tobacco consumption. It helps in spreading awareness among the illiterate.

PLAIN PACKAGINGIt is not only Binoy who is lobbying for thecause. Plain packaging was taken as thetheme of this year’s “World No Tobacco Day”by the World Health Organization (WHO).This restricts or prohibits the use of logos,colors, brand images or promotional infor-mation on packaging, other than brandnames and products names and is to be dis-played in a standard color and style.According to WHO, the plain packaging less-ens the attractiveness of tobacco products,limits misleading packaging and labellingand increases the effectiveness of healthwarnings.

Countries across the world have started

implementing plain packaging. Australia wasthe first to do so in 2012. Ireland, the UK andNorthern Ireland, and France joined the clanin 2015 by passing laws to implement plainpackaging from May 2016.

If you look at the larger picture, tobacco isan enormous health and economic burdenfor India. Reportedly, nearly 10 lakh Indiansdie annually (about 2,700 daily) from tobac-co-related diseases in the country. Fifty per-cent of all cancers in India are due to tobaccoconsumption. The highest numbers of oralcancer cases in the world occur in India and90 percent of these are tobacco-related. Itsabuse is a leading cause of tuberculosis-relat-ed mortality in India. A staggering `1.04 lakhcrore is spent on healthcare costs to treattobacco-related diseases. According to theInternational Tobacco Control Project esti-mates, India will record 1.5 million tobacco-related deaths annually by 2020.

VESTED INTERESTSGiven the health issues involved, why did ittake two years and a court order for the government to implement a Union HealthMinistry’s October 15, 2014 notification on increasing the size of the pictorial

2008: The GoMdecides to replaceboth sets of the previ-ously notified pictureswith three smallerimages—an X-raypicture of a humanchest (to suggesttuberculosis), adeceased lung and ascorpion to symbol-ize cancer. Also, thesize of the new packwarnings is reduced

to 40 percent of oneprincipal display area.

2010: The HealthMinistry issues anotification to intro-duce a new set ofpictorial healthwarning images forimplementation byJune 1, 2010.

2011: TheSupreme Court ofIndia asks thehealth ministry toexplain why itdeferred the warn-ings that wereannounced inMarch 2010.Unfortunately, thecase doesn’t comeup for hearing.

2014: The thenhealth minister, DrHarsh Vardhan, issuesa notification making itmandatory for tobaccocompanies to displaypictorial health warn-ings on 85 percent ofthe principal displayarea of all tobaccopacks.

2015: OnSeptember 24, 2015,the government noti-fies April 1, 2016 asthe date for enforce-ment of the Cigarettesand Other TobaccoProducts (Packagingand Labelling)Amendment Rules,2014, that requiresdisplay of 85 percenthealth warnings on alltobacco productpackages.

2016: The SupremeCourt dismisses thepetition for stay on theimplementation of thenotification.


warnings? It is alleged that it dragged its feetbecause of pressure from the powerful tobaccolobby. This explains why it referred the notifi-cation to the Parliamentary Committee onSub-ordinate Legislation with an objective tohave wide-ranging consultation with stake-holders such as the tobacco farmers, manufac-turers, retailers and concerned ministries inorder to assess the impact of the enhancedpictorial warnings on farmers, workers andthe tobacco industry.

Matthew alleges that “it is because of thevested interests of some members of parlia-ment that it took two years to implement asimple rule that is proving to be the mosteffective so far in combating the health risks oftobacco”. Indeed, the Committee, among

whose members is Allahabad MP ShyamaCharan Gupta, who owns a beedi empire,seemed sympathetic to the industry’s cause.

Its recommendation was that theincrease in the size of pictorial warning mustbe limited to 50 percent on both sides of thecigarette packs. It was softer on beedis andother tobacco products: “The Committeestrongly feels that the government needs toreconsider its decision to cover bidi industryunder the amended rules and recommendsthat a practical approach in the matter maybe adopted by increasing the size of warningup to 50 percent on one side of the bidi pack,chewing tobacco and other tobacco products,namely zarda, khaini, misri etc which will befeasible to follow and which would alsoensure that a large number of people in thetrade will be saved from being renderedunemployed.”

The courts stepped in when Rahul Joshi,an advocate from Jaipur, filed a PIL in theRajasthan High Court demanding the imple-mentation of the 2014 rules. Subsequently,the central government gave a commitmentthat the rule would be implemented by April2016. The Karnataka Beedi Association hadfiled a plea in the apex court praying for astay. But its plea was rejected, thus clearingthe decks for larger pictorial warnings. Yes,smoking is indeed injurious to health. IL

CRUX OF THE PROBLEM(Right and below) Those who

consume tobacco products put their health to great risks


UNI

20 July 15, 2016

SUPREME COURT

The Supreme Court did not offer relief toanimal rights activists’ against a cen-

ter’s notification that had permitted killingof Nilgais in Bihar, monkeys in HimachalPradesh and wild boars in Uttarakhand. Thecenter had declared all these animals in therespective states as “vermin”.

Normally, it is illegal to kill wild animalsunder the Wildlife Protection Act. But oncedeclared “vermin” by the government,

these can be culled. This happens whenthe animals become a nuisance attackingcrops, property and even people.

The apex court did not grant a stay onthe notification, but made it clear that ani-mals can be killed only when they enterinto human habitation. But it will hear theactivists’ petitions and posted the matterfor July 15.

The Court also asked the petitioners toapproach the respective state governmentsand the center with their objections. It dir-ected the center to respond to the issuesraised by activists within two weeks.

The center can, under Section 62 of the

Wildlife Protection Act, declare a protectedanimal as “vermin” for any area or periodas specified in its notification. The activistshad challenged the Section itself, arguingthat it gave arbitrary powers to the centerto allow reckless killing of animals.

No stay on culling animals

The Supreme Court recentlyinterpreted the Right of Private

Defense under Section 97 of theIPC. The Court observed that itwas not a crime to assault some-body in retaliation when parents orrelatives were being attacked. Itruled that such an action would betreated as “private defense’.

The case in question concernedtwo brothers who had been heldguilty by the trial court for beatingup their neighbors in a village. Thelower court held them guilty of

attempt to murder. The Rajasthan High Court rati-

fied the verdict of the lower courtand even awarded two-year rigor-ous imprisonment.

While acquitting them of allcharges, the apex court pointedout that the prosecution did notdisclose the origin of the fight. Theapex court felt that it would be justto give the benefit of doubt to thebrothers, considering the injuriessuffered by them and the fact thatthe father died due to the assault.

APIL was recently filed in the SupremeCourt for banning WhatsApp. Sudhir

Yadav, an RTI activist from Haryana contend-ed in his petition that the end-to-end encryp-tion technology used by WhatsApp made itvirtually impossible to intercept messages,and terrorists could easily take advantageand share information, inimical to the coun-try’s security. The intelligence agencies

would be rendered helpless as they could inno way tap into the messages and decrypt-ing a single 256-bit encrypted messagewould take hundreds of years, he argued inhis petition. The petitioner further pointed outthat even if asked WhatsApp itself could not“break through” such messages.

The matter was scheduled to be exam-ined by the Court on June 29.

PIL to ban WhatsApp

—Compiled by Prabir Biswas, Illustrations: UdayShankar

Interpreting right to private defense


COURTS

Public witnesses can’t be allowedto suffer just because hearings in

courts on criminal cases areadjourned repeatedly, the Delhi HighCourt observed. It pointed out thatfrequent postponements of hearingscompel witnesses to appear incourts again and again, which is amajor disincentive for them to helplaw-enforcement agencies in crimi-nal cases.

The court held that this tendencyof criminal courts may discouragethem from rendering “crucial” help tothe police and the judiciary, especia-

lly in cases where they have seen the crime. As it is, witnesses spenda lot of time and effort on joining theinvestigation process before theyappear in courts.

It wanted the criminal courts tobe quick in recording the testimonyof the witnesses and relieve them atthe earliest, and also not to adjournhearings on flimsy grounds.

The remarks were made by theCourt while it was hearing a conviction challenge under theNarcotic Drugs and PsychotropicSubstances Act.

Stop harassing witnesses

Mallya, a “proclaimedoffender”

Fugitive liquor baronVijay Mallya was

named a “proclaimedoffender” by a specialPrevention of MoneyLaundering (PMLA) court, recently.

The EnforcementDirectorate wanted the proclamation so that itcould bring the business-man back to India fromLondon, where he is bel-ieved to have fled to es-cape the arms of the law.

The agency wantedMallya to join a proberelated to the allegedmoney laundering by himin the `900 crore loantaken from IDBI.

Mallya flew to Londonafter the PMLA courtissued a non-bailable warrant in the case.

The much-awaited verdicton the quantum of sen-

tence for the 24 convicts inthe 2002 Gulbarg massacrecase was announcedrecently by the special SITcourt in Ahmedabad. Elevenpeople received life impri-sonment, 12 were awardedseven-year jail terms andone was sent to jail for 10years. No capital punish-ment was awarded in thecase as the court observedthat the offense could not becalled “rarest of the rare”.

Former Congress MPEhsan Jafri was one of the69 people killed by a ram-paging mob. The Court hadearlier on June 2 held 24people guilty and acquitted36. Sixty people were heldaccused for the crime.

Observing that the con-victed persons should begiven an opportunity toreform, the court saw rea-son in the argument put bythe defense that the mobreacted violently only afterJafri fired on it.

Realizing that a tenant couldmanage to occupy a prop-

erty for close to four decadesand even delay the case forsuch a long period, the MadrasHigh Court observed that rent-control laws must be revised.

The man in question was aChennai tenant, VG Naidu, whowas first asked to pay rentarrears by October 14, 1977 bya lower court. When he did not

do so, the owner movedcourt again and got anorder in January 1978 toget the property vacated. AsNaidu did not comply, theowner went to the courtagain which reiterated itsverdict in February 1990. Theowner then sold the house.

The second owner appealedto the lower court for carryingout its 1990 order. But Naidu

claimed that he had no legalright to evict him. The Courtrejected Naidu’s contention,slapped a fine of `50,000 andasked him to vacate the pro-perty within 15 days.

Rent laws need reform

Sentence forGulbarg convicts

— Compiled by Prabir Biswas: Illustrations: UdayShankar

22 July 15, 2016

IS THAT LEGAL?

What is the difference betweentheft and robbery? Section 378 defines theft: “Whoever,intending to take dishonestly anymovable property out of the posses-sion of any person without that per-son’s consent, moves that property inorder to such taking, is said to com-mit theft.”

As per Indian law, under “theft”,the taking of property may be “tem-porary” but should be only of mov-able property. Immovable propertymeans land and anything attached toit. The moment it is severed, itbecomes movable property. Forexample, if standing crops or treesare cut from their roots and taken

away, that becomes movable prop-erty and a subject matter of theft.

Section 390 defines robbery: “Inall robbery, there is either theft orextortion.” Robbery is an aggravat-ed form of theft and extortion.The chief distinguishing feature isthe presence of imminent fear ofviolence. For example, in theinstance of chain-snatching,if thevictim is slapped or beaten up, theclauses of robbery are invoked.

If a person kills someone with the intention of causing death but for thepurpose of self-defense, is he/she liable?Self-defense is the first rule of criminallaw. The right to private defense isabsolutely necessary for the protection ofone’s life and property. As per Sections 96-106 that pertain to the right to privatedefense, use of force against an assailant ora wrong-doer is legally permissible whenimmediate state aid cannnot be procured.

Section 96 lays down the generalproposition that “nothing is an offensewhich is done in the exercise of the right toprivate defense”.

Section 100 provides that the right toprivate defense extends even if it causesdeath or any other harm to the assailantunder the following six circumstances: �The assault causes reasonable apprehen-sion of death. �There is apprehension of grievous hurt. �The assault is with the intention of com-mitting rape. �The assault is with the intention of grati-fying unnatural lust. �The assault is with the intention of kid-napping or abduction. �The assault is with the intention ofwrongfully confining a person.

In the Viswanath v State of UP case, theaccused saw his sister being abducted byher estranged husband, his brother-in-law.The accused stabbed the brother-in-law.The trial court acquitted him whereas theHigh Court convicted him. The SupremeCourt set aside the HC verdict.

A loyal and hardworking employ-ee of a company dies of heartattack after reading his unexpect-ed termination letter. Can thefamily claim damages? The family cannot claim damagesas there is neither intention nor anyknowledge of causing death in theabove case.

Section 299 gives the definitionof culpable homicide: “Whoevercauses death by doing an act withthe intention of causing death, orwith the intention of causing suchbodily injury as likely to causedeath, or with the knowledge thathe is likely by such act to causedeath, commits the offense of cul-pable homicide.”

For criminal liability to be directand distinct, the causal connectionbetween the act and death need notnecessarily be immediate, but itmust not be too remote either.

Some obscure connectionsbetween the act and the death are: �Mother dies as son fails exam; anemployee commits suicide becauseboss does not raise his salary; anemotional cricket fan dies of a heartattack when India loses and so on.�Connection between cause (act)and effect (death) may be definiteand obvious, but is impossible toprove.�Death is too remote and improba-ble as a consequence of the act,i.e. the act does not usually cause death.

Self-defense is anecessity at times

Illustrations: Uday Shankar

Robbery is a strongerform of theft

Can death due to a termination letterlead to compensation?

—Compiled by Mishika Chowdhary


NO, NO, NO!I

T’S remarkable how courage cansuddenly erupt in completelyordinary lives constrained bynumerous fears and inhibitions,to become the foundation forturning points in history. Some-times, it just takes a lone trigger

to spark that act of courage. When ShayaraBano, who had been married for 14 years,saw a letter in the post from her husband,Rizwan Ahmed, she thought he must be ask-ing her to return to him after he dropped her

LEAD/

Amitava Sen

Instantaneous triple talaq is against theQuran, the Indian constitution and awoman’s human rights. Spurred by

a lone Muslim woman’s charge, abrigade of activists and supporters isurging the Supreme Court to ban this

“abhorrent practice” By Ramesh Menon

24 July 15, 2016

Triple Talaq

off at her parents’ home in Kashipur,Uttarakhand. But the letter just had threewords: Talaq, talaq, talaq.

In seconds, her world crumbled. Slowly,haunting images of her husband indulging inconsistent domestic abuse, forcing her toundergo half-a-dozen abortions and threat-ening her with divorce time and againreturned. Images those 14 years had piled up.

She also remembered how she had been asimple, happy girl studying sociology inUttarakhand before she got married. Shedoes not know how she summoned up suchcourage, but she decided to put up a fight.This February, she filed a case in theSupreme Court seeking a ban on triple talaqas it is usually practiced in India. She is nowfighting for thousands of other Muslimwomen who had been similarly wronged andis also challenging the male-dominatedMuslim law-making bodies. She soon real-ized the import of the step she had taken asoverwhelming support began to pour in. Shehad catapulted a private issue like triple talaqinto a national debate.

As Firoz Bakht Ahmed, the grand-nephew of Maulana Abul KalamAzad, the famous freedom fighter,

points out, “In her petition, Shayara has chal-lenged ‘instantaneous triple talaq’ and nottriple talaq itself, which is allowed by theQuran as long as the three utterances arespread over 90 days. Shayara’s is the firstsuch case where a Muslim woman has chal-lenged a personal practice, citing the funda-mental rights guaranteed by the constitution.With the All India Muslim Personal LawBoard (AIMPLB) deciding to oppose anymove to scrap triple talaq and contest the Shayara Bano case, the stage is set foranother Shah Bano-like confrontation like inthe 1980s.”

Since they set up the Bharatiya MuslimMahila Andolan (BMMA) in 2007, activistsZakia Soman and Noorjehan Niaz have doc-umented thousands of heart-rending storiesfrom more than 30,000 of its membersacross India. Many of them have been vic-tims of triple talaq. A 2013 BMMA surveyfound that 92 percent of women want a banon triple talaq and 88.3 percent want the

legal divorce method to be that of talaq-e-ahsan, which is spread over 90 days andinvolves negotiation and is not unilateral.

The survey, which had 4,710 Muslimwomen respondents in 10 states, showed thatthey sought reform and codification ofMuslim law based on Quranic principles.They felt they did not have the rightsenshrined in the Quran.

That maintenance is a real issue can begauged by the fact that the families of 73.1percent earned less than Rs. 50,000 annual-ly. Nearly 53.2 percent had faced domesticviolence. Shockingly, 95.5 percent of themhad not heard about the All India MuslimPersonal Law Board. Mumbai-based Niaztold India Legal: “Triple talaq is ruining

BROKEN DREAMSLives of thousands ofMuslim women havebeen destroyed due tothe practise of triple talaq just months afterthey married


Photos: UNI

Indian Muslims face multiple problems – farmore than any other prominent religiousgroup. Some of the baggage they carry is

because of the negative perspective withwhich the majority community views them,which is based on half-truths, propaganda,outright lies and trumped-up charges.Another reason is their inability to counteropportunistic interlocutors who speak up ontheir behalf like the personal law board andmanipulative political leaders.

The AIMPLB, formed in 1972, is a motleycollection of 201 members, including clericsand some professionals, of which 101 are

‘Muslims don’t need law boards’Educated Muslims feel education, socio-economic issues more crucial todayfor the community to get ahead By Firoz Bakht Ahmed

the lives of so many women. Men find it soeasy as they just need to utter talaq threetimes. Men are getting away with it as thereis no law that can punish or stop them. Daily,we hear so many painful stories from women.This is what gives us the energy to fight,demanding legislation to ban triple talaq.”

More and more Muslim women in Indiaare finally finding the courage to fight for theirlegal rights in matters related to marriage anddivorce. They are now challenging the conceptof triple talaq and demanding a ban on it. Theyare capturing the imagination of other Muslimwomen who until now suffered silently andhad similar stories punctuating their lives –being divorced through SpeedPost, Facebook,Skype, WhatsApp, text messages and phonecalls without their consent and sometimes evensans their presence. A word repeated threetimes had wreaked havoc in their lives andchanged them forever. It is not easy to just pick

up the shattered pieces and move on especiallysince there are several problematic issues withalimony in Muslim personal law.

In April, another woman, AafreenRahman from Jaipur, became the secondpetitioner in the Shayara Bano case after

her husband used SpeedPost to divorce her –sending a letter with talaq written threetimes. Though this is contrary to the Quranictenets of justice, in addition to violating sev-eral rights guaranteed by the constitution,Muslim women who go to their communitycourts do not get justice. These courts, dom-inated by conservative male elites, oftenuphold such divorces.

Then there is the practice of nikah-halala.If the husband is ready to take back hisdivorced wife, it can only happen if the wifemarries another man, consummates themarriage and then divorces him—the processof nikah-halala. Shayara Bano has asked theSupreme Court to also ban nikah-halala andpolygamy which many women now see astypical patriarchal practices that violate theirhuman rights.

Support for Shayara Bano is snowballing.The BMMA has collected more than 50,000signatures of Muslim women and men

The Bharatiya Muslim Mahila Andolan hascollected more than 50,000 signatures

against triple talaq and documented over30,000 heart -rending stories of victims.

permanent while the rest have a three-yearterm. While the community wants to changewith the times, most of the Board membersrepresent an orthodox male opinion. Theylack a progressive viewpoint. In fact, if theBoard has to gain any relevance then enlight-ened lawyers, academicians, social activists,journalists, teachers and clerics who havebeen blessed with sanity must be included inthe AIMPLB and their voices heard.

If the AIMPLB members are told of pro-gressive measures and reforms regardingtalaq, polygamy or family planning even incountries like Pakistan (Muslim Family Laws

26 July 15, 2016

LEAD/Triple Talaq

against triple talaq, nikah-halala andpolygamy in its nationwide campaign. TheNational Women’s Commission has ann-ounced that it will also become a party to theBano class action suit which means that agroup of people with similar grievances gettogether to sue as a group.

At 28, MBA graduate Afreen was happytwo years ago when a match with a lawyerbased in Indore worked out. But, soon afterthe wedding, her trauma started as shebecame a victim of domestic violence. Rea-son: More dowry. Her brothers had taken ahuge loan for her wedding so she chose tosilently suffer and never told her parents. Ayear later, her husband threw her out of thehouse. Her parents initially pleaded with herhusband to take her back. He did so, only tothrow her out again. Then came the letter bySpeed Post, divorcing her.

The Supreme Court has now accepted herpetition challenging the talaq and asking fortriple talaq to be banned. It is now part ofShayara Bano’s petition.

The practice is already banned in 22Islamic nations, including Pakistan andBangladesh. Indonesia, the only country withmore Muslims than India, has also banned it.(See Box) Shaina Hasan, Disaster Risk

Ordinance), Iran or Indonesia, they denouncethem and declare that they don’t follow whatis practised in these Islamic countries.

Eminent Muslim lawyer M Atyab Siddiquisays Muslims do not need law boards. Theywould rather address issues of prime impor-tance like education and economic andsocial backwardness. Seriously, AIMPLBneeds to be sidelined and the communityhas to shoulder the burden of bringing itselfinto the mainstream.

Religious but moderate Muslims in thiscountry believe that key issues have to beaddressed by the community as a whole.Ideally, the AIMPLB should hold a referendumon important issues like instantaneous tripletalaq or birth control. But the tragedy is that,in the din, the voice of sanity is lost and themedia pays no heed to it. Muslims whochoose to embrace modernity find the AIM-PLB an anachronism. What’s still more

shocking is that by projecting the entire com-munity as obscurantist, the Board actuallyharms the cause of the faithful whom itclaims to serve.

Even the new draft of the AIMPLB’s modelnikahnama doesn’t ban triple talaq. It justcalls it unethical. Triple talaq in a single sittinghas to be tackled with an iron hand. IfMuslims are involved in the process ofreform, it will be seen as having emanatedfrom within.

How do we involve Muslims in theprocess? The Pakistani enactment of theMuslim Family Laws Ordinance of 1961 canact as a guideline. The AIMPLB could issue asimilar questionnaire keeping Indian condi-tions and specificities in view and evaluateMuslim public opinion before recommendingnecessary reforms.

The author is a commentator and grand-nephew of Maulana Abul Kalam Azad


Anil Shakya

Reduction Consultant, United Nations, says:“Triple talaq is an abhorrent practice that hasno place in Islam and our country. Not only isit un-Islamic, it also goes completely againstthe principle of equality. That is why mostMuslim countries like Bangladesh andPakistan have banned it. If countries thatclosely follow Shariah law such as SaudiArabia have banned it, what’s stoppingIndia? It is really sad that the All IndiaMuslim Personal Law Board, instead ofbeing sympathetic towards Muslim womenwho suffer due to this crime, has turned ablind eye to the demand for reform and hasbeen completely resistant to change. Thegovernment must step in and abolish thisregressive practice of triple talaq.”

Muslim leaders and political parties havelargely kept out of the debate. Many feel thisis because patriarchal attitudes dominate.Sabiha Farhat, a television producer and doc-umentary filmmaker, points out: “It is a dou-ble whammy for Indian Muslim women asthey have been let down by national leadersand religious leaders. What the communityneeds today is a leader like Ambedkar, whocodified the Hindu personal law despiteopposition from leaders like Sardar Patel,Syama Prasad Mookerjee, Dr RajendraPrasad and many others to give us the HinduCode Bills standing against Hindu orthodoxythat saw a threat to patriarchy. These mainlygave Hindu women the right to property,

equality in filing of divorce, right to mainte-nance and guardianship of children and abo-lition of polygamy. After these many morereforms have been carried out, puttingHindu personal law on a progressive path ascompared to Muslim personal law.”

Protecting tradition, culture and reli-gious practice takes precedencedespite women’s human rights being

trampled upon. Triple talaq is just one exam-ple. Recently, Maneka Gandhi, the UnionMinister for Women and Child Develop-ment, cited cultural concerns for not sup-porting the criminalization of marital rape inIndia. Similarly, cultural and religious oppo-sition has slowed the pace of reform ofMuslim personal law, withholding the bene-fits that accrue from multiculturalism.

Firoz Bakht Ahmed adds: “All that theAIMPLB has managed so far is to tarnish theimage of Indian Muslims. Most statementsemanating from the board that the mediaquotes are taken to be the community’s posi-tion. The truth is that an average Muslimthinks differently and is not influenced orgoverned by what the AIMPLB states.”

The issue of Muslim personal law hasbeen raised numerous times but then hasbeen lost to political rhetoric. Even when itwas raised in the context of the Uniform CivilCode, which is a policy goal for India in theDirective Principles of State Policy, it evapo-rated in political jugglery by various religiouscommunities which did nothing to amelio-rate the plight of Muslim women.

Points out Sabiha: "The onus of reform ofthe Muslim Community is on parliament asthe Muslim Personal Law can be codifiedonly by an act of Parliament. Why isn't theparliament doing it despite so many years ofpetitioning by NGOs and activists? Andtherein lies the politics—who are we appeas-ing at the cost of Muslim women? ThatMuslims will be governed by their PersonalLaw, is an Act that was put in place by Britishin the 1830's. But nowhere in our legal sys-tem has the Muslim personal law been spec-ified or written down by legal experts. It istherefore open to individual interpretations.Why is it still not clearly stated or codifieddespite 69 years of freedom? This in effect

1 Pakistan2 Turkey3 Bangladesh4 Cyprus5 Tunisia6 Algeria7 Malaysia8 Iraq9 Iran10 Indonesia11 Saudi Arabia12 Sri Lanka13 Egypt14 Sudan15 Brunei16 Jordan17 Morocco18 Yemen19 Syria20 UAE21 Qatar22 Kuwait

Showingthe way As many as 22Islamic nationsbanned tripletalaq ages ago

28 July 15, 2016

Anil Shakya

LEAD/Triple Talaq

Noorjehan Niaz saystriple talaq is ruiningthe many lives. Men

find it so easy toutter talaq thrice.Men get away asthere is no law to

punish or stop them.

Zakia Soman saysthat leaders of theMuslim PersonalLaw Board havestonewalled the

issue of triple talaqcalling it an attack

on Islam.

MBA graduateAfreen Rehman,

who was divorcedthrough a

SpeedPost letter,has also petitionedthe SC, challenging

triple talaq.

Shayara Bano is thefirst Muslim woman

to have challenged apersonal practice citing fundamental

rights guaranteed bythe Indian

Constitution.

means that 13 percent of the population isleft to the whims of Maulanas who are ortho-dox and patriarchal."

In the landmark Shah Bano judgment of1985, the Supreme Court ruled that the62-year-old was entitled to maintenance

after divorce, like any other woman citizen ofIndia, under Section 125 of the CriminalProcedure Code. But the Muslim communi-ty’s orthodox leadership slammed the judg-ment and the then Congress governmentunder Prime Minister Rajiv Gandhi did notwant to upset the community as electionswere round the corner. It enacted the MuslimWomen (Protection of Rights on Divorce)Act, 1986. This Act provided for mainte-nance for only three months after divorce. Itwas clearly a regressive step with disastrousconsequences for Muslim women as it shift-ed the onus of maintaining the divorcedwoman onto her relatives or the Wakf Board.Clause A in Section 3(1) of the Act says that adivorced woman shall be entitled to a reason-able and fair provision and maintenance willbe paid by the husband. This was open to

interpretation as the latter would decidewhat was fair.

In 2005, the government appointed theSachar Committee to evaluate the socio-eco-nomic conditions of Muslims in India. Whilethe report established that the Muslim com-munity was economically, socially and educa-tionally lagging, the Committee was notmandated to look into the status of Muslimwomen. There has been no empirical studyconducted by the government to evaluate theproblems faced by Muslim women especiallywith regard to Muslim personal law. Andthis, despite the raucous communalismraised in the context of the Uniform CivilCode in political circles. Muslim personal lawis unique, when compared to family lawapplicable to other communities because it islargely uncodified. In India, both state courtsand community courts adjudicate on issuesof Muslim personal law.

As Sabiha points out: “Muslim personallaw is not even codified, to begin with. It canonly be codified by an act of parliament, itcan’t be done by individuals. Muslim womenhave been left to the mercy of maulvis


who are orthodox and patriarchal. Therehave been many Muslim women’s organisa-tions and men who have raised the demandto codify Muslim personal law and to doaway with triple talaq but no political partyseem to care. None of them has spokenagainst triple talaq.”

“Muslims do not have a leader of theirown, they have always voted for mainstreampolitical parties, regional or national. Hinduleaders are their leaders and they must fightfor the rights of Muslim women and standagainst Muslim orthodoxy,” she adds.

Even when Muslim matrimonial casescome to state courts, there are several issuesthat stand in the way of justice for thesewomen. Often, judges in lower courts are notclear on aspects of Muslim family lawbecause they tend to depend only on codifiedlaw. Nevertheless, landmark judgments bythe Supreme Court since the 1970s haveoften referred to sources beyond statutes,such as Islamic law followed in other coun-tries, to push for reforms within Muslim law.

More specifically, the judgments havereferred to Islamic state law in countrieswhere women enjoy greater rights than inIndia such as Tunisia, Libya, Jordan, Iraq,Indonesia and Malaysia.

The courts unconditionally acceptedtriple talaq until 1978, when it was declaredto be revocable if two conditions were notmet. Justice Baharul Islam, in his judgmentin the case of Jiauddin Ahmed v. AnwarBegum in 1978, said: “The correct law oftalaq as ordained by the Holy Quran is thattalaq must be for a reasonable cause and bepreceded by attempts at reconciliationbetween the husband and the wife by twoarbiters—one from the wife’s family and theother from the husband’s. If the attempts fail,talaq may be effected.”

This landmark case went unnoticed for avery long time until 2002 when the SupremeCourt delivered a definitive verdict on therevocability of triple talaq in the case ofShamim Ara. Between 1978 and 2002, mostlower courts continued to uphold triple talaqas valid, as there were merely 10 reportedcases where High Courts deemed triple talaqrevocable. Even though the Shamim Arajudgment is progressive, it leaves a lot to bedesired and the courts or legislatures havenot done enough to protect the rights anddignity of Muslim women when it comes tounfair divorce practices.

Though the judgment laid down thatthe husband must provide a “reason-able cause” for divorcing his wife, it

does not specify what such reasons can be.For instance, it does not specify whetherthese reasons are the same as the grounds onwhich Muslim women are permitted to judi-cially mediate divorce, or if men can divorceon a larger set of grounds. The verdict alsodoes not specify what would happen if effortsat reconciliation have not been made beforethe divorce is announced.

With these issues unclear, lower courtsand community courts are free to continue totake decisions that might be biased againstwomen. Muslim women deserve more res-pect and equal protection under the laws ofIndia. Change and Gender Equality, autho-red by Narendra Subramanian in 2008, said

Fourteen hundred years after the Qurangranted equal rights to women, triple talaq

continues to marginalize Muslim womenthough the Quran has no reference of it.

LEAD/Triple Talaq

The Quran lays down how a dialogue is tobe evolved over 90 days between theestranged couple. If it fails, relatives medate.If that also fails, can talaq be allowed?

The Quran clearly lays down how a dia-logue has to be permitted to evolve,spread over 90 days, between the

estranged couple. When that does not work,relatives start mediating. Only if that alsofails, can talaq be allowed. Unilateral talaq,as practiced in India, is not allowed by thescripture. The norm for divorce is to pro-nounce talaq once and, in the 30 days thatfollow, there is room for the couple to recon-cile. If that does not happen, talaq is pro-nounced again after which, for the next 30days, relatives try to work out a reconcilia-tion. If this too fails, the third talaq is pro-nounced. The divorce can be granted onlyafter another 30 days. The idea of the long-drawn-out period is to enable the couple to grab any window of opportunity for reconciliation.

However, it hardly ever works out likethat. J Begum was divorced unilaterally byher husband by the oral pronouncement oftalaq, three-and-a-half years after marriage.Though she had a nikahnama, she did notreceive her mehr nor does she know what theamount was. She has also not received anymaintenance allowance from her husband

that judges in lower courts and communitycourts often misunderstand or do not knowthis judgment.

Fourteen hundred years after the Qurangranted equal rights to women, triple talaqcontinues to marginalize Muslim women.The Quran does not have any reference totriple talaq. Ahmedabad-based Zakia Somantold India Legal: “Triple talaq is un-Quranic,not in keeping with the Indian constitutionand is unjust and inhuman. It has to be abol-ished. There is no mention of talaq in the Quran but the leaders of the Muslim per-sonal law board have stonewalled the issue oftriple talaq, saying that it is an attack onIslam. It is a patriarchal conspiracy to denywomen their rights. They have manufacturedthe concept of how a Muslim man can say talaq three times and secure an instantdivorce. We have to stop the patriarchy andconservatism that is passed off in the name of Islam.”

Adds Saif Ahmad Khan, a freelance writerfor Huffington Post, “The fact that tripletalaq finds no mention in the holiest Islamicscripture should make it easier for us to doaway with it.”


Photos:UNI

IL

after the divorce though she managed to getback her jewelry and other belongings fromher husband’s house. She now lives with herparents in Odisha. There are thousands ofsuch heart-rending stories of Muslim womenwho have become victims of triple talaq.Every city and village will have one.

After completing her MPhil, Naveenagot married. The nightmare begansoon as she battled domestic vio-

lence and demands for more dowry. Threemonths later, her husband unilaterallydivorced her by a letter through a Qazi. Shedid not get her mehr, which had been fixedat 10 grams of gold before the wedding, nor

did she get any maintenance after thedivorce. She now lives with her parents atTiruppur in Tamil Nadu, looking after heryear-old baby. She has heard that her for-mer husband is now preparing to marry forthe third time.

KI Ahmed, president, Interfaith Har-mony Foundation of India, told India Legal:“Divorce is permitted in Islam but it is largelydiscouraged. This is the last action that ahusband should take, only when all tools ofreconciliation are exhausted. Triple talaq hasbeen abandoned by the Muslim world. InIndia, there is unfortunately no centralizedmechanism where highly educated and qual-ified ulemas who are progressive can sittogether and come to a decision on why thisshould continue here. But the fact is that wehave to stop the abuse of the provision oftriple talaq.”

As she did not have the money for any for-mal education, 20-year-old Rubina fromBhopal worked as a domestic help to makeends meet. Three years after she was mar-ried, her husband used the triple talaqmethod to divorce her all of a sudden. Hermehr, fixed at `7,000, was not handed over.Nor were her personal belongings or jewelry.She was also not offered any maintenance.The man soon remarried. She and her seven-year-old daughter now live with her parents.Justice is a distant dream for her, and thou-sands like her.

—With inputs from Punkhuri Chawla

FilmmakerSabiha Farhatsays that the

onus of reformis on parliament

as the Muslimpersonal law

can be codifiedonly by an act.

Shaina Hasanwho is withthe United

Nations saystriple talaq isan abhorrentpractice thathas no place

in Islam and India.

In the landmarkShah Bano

judgment, the SCruled that she was

entitled to maintenance after

divorce like anyoneunder Section 125

of the CRPC.

32 July 15, 2016

LEAD/Triple Talaq

NATIONAL BRIEFS

India, Thailandsign pacts

Maharashtra Chief MinisterDevendra Fadnavis has

confirmed that BJP leaderEknath Khadse will not have toface a judicial probe, contraryto the demands of the opposi-tion. A panel headed by aretired High Court judge willbe constituted to investigatethe case. Khadse has beenembroiled in the controversialpurchase of government land.According to The IndianExpress, the CM explained thatit was supposed to be a high-level enquiry and at one point,the government was even con-sidering a judicial probe. Butthe BJP leadership, both at thestate and the Center, are learntto have opposed the move. The NDA government has decided to

relax the regulations for some of the sectors vis-a-vis Foreign DirectInvestment (FDI). In a step labeled as“radical liberalisation”, the FDI norms willbe eased in 15 sectors, including defense,civil aviation and pharmaceuticals. This decision comes soon after RBIGovernor Raghuram Rajan’s resignation.The opposition Congress called it a “panic reaction” that would not have happened had Rajan not stepped down from his post. The move is expectedto attract global investors and ease rulesfor them.

Khadse probewatered down

Center questionsGujarat land Bill

The Center has raised queries overthe Gujarat Agricultural Land

Ceiling (Amendment) Bill, 2015, thataims to change the preamble of theoriginal legislation by making surplusagriculture land — meant for landlessfarmers — also available to industry.The Bill was passed by the Assemblylast year in August. The IndianExpress reports that the Gujarat gov-ernment assured the Center that therewas “enough agriculture land” avail-able in the state and that the proposedamendments would not affect farmproduction.

At a meeting with his Thaicounterpart General

Prayut Chan-o-cha, PrimeMinister Narendra Modidecided to step up coopera-tion with Thailand in thefields of economy, counter-ter-rorism, cyber security andhuman trafficking, besidesforging closer ties in defenseand maritime security. The

leaders agreed to the earlyconclusion of a balancedComprehensive Economic andPartnership Agreement. Modisaid both the countries haveprioritised the completion ofthe India-Myanmar-ThailandTrilateral highway and earlysigning of the Motor VehiclesAgreement between India,Thailand and Myanmar.

Govt to ease FDI regulations


MY SPACE/Censorship

Will the Floodgates

Bikram Vohra

34 July 15, 2016

IN a world of open-endedaudio-visual piracy and thealmost comical ease withwhich you can download thelatest films, albeit illegally, anycontroversies over cinematiccensorship are relativelymeaningless. The garbagethat spews off the 11-inch

screen and the laptop is viral. And so endlessand invasive that it makes a mockery of cen-sorship per se.

Add to that the deluge of pornographythat drenches the younger generation (andothers) over the net and you might as wellgive up the ghost completely and make theCensor Board more an advisory agency than a moral police force which it occasional-ly assumes.

Come to think of it, that is exactly what itshould be. A body whose job it is to certify thecategory of the film and leave it at that. The word “censor” is anti-“democratic” andpresumes that the state wishes to exercise itsnon-constitutional “right” to think for the people.

IMPERFECT WORLDIn a perfect world, this would be the perfectequation. But it is not a perfect world andonce that stone starts rolling down the hill,honesty and transparency are up for grabs.Most of the time, we are imperfect peopledoing imperfect things for imperfect reasons.The cinema industry is no exception.

The milestone judicial decision over UdtaPunjab certainly moves the goal posts andsets a precedent for the future. Now, that theCensor Board has been given a celluloidvasectomy, the onus does fall on the filmmak-er and the script-writer, on TV and on mediain general to ensure that it behaves

While Bollywood celebrated the Bombay HighCourt verdict okaying Udta Punjab, it could beseen as a license to show films full of sleaze,smut and violence. An emasculated CensorBoard is worse than none at all

Open?

Brace yourselffor the ugly eraof Indiancinema whereall will be laidbare. Subjectslike pedophilia,rape of minors,child trafficking,sexual deviations willbe exploitedand packagedfor the publicbecause, afterall, aren’t theyas valid as narcotics doingthe dirty inPunjab?


responsibly and does not go for broke.Herein lies the rub. Do we have the matu-

rity not to exploit the newly minted freedomallotted to us? What if we go for the lowestcommon denominator and there is enoughevidence in Indian cinema across the boardthat indicts us for bad taste and visual andspoken ugliness.

TACKY CINEMAThe danger in a misjudgment over this partic-ular film predicated to a hubris by PahlajNihalani is that it can lead to the dam burst-ing and mediocrity fuelling cheap and tackycinema in the near future. Just because UdtaPunjab does have relatively high values andtells its story with vigor and style does not nec-

essarily mean that its clones will aspire tosuch heights.

Most of Indian cinema, especially region-al, borders on the vulgar. Some of the coarse-ness that gets the nod from the Censor Boardmakes one wonder what is the yardstick. Thechairman speaks of guidelines. What prismsare employed to assess these is not listed.This restoration of the film does encouragethe lurking fear that it could be seen as per-mission to do dozens of Udta Punjabs on abudget and in all languages. What we arethen looking at is gratuitous violence and sexspiraling to obscenity under the guise of “freeexpression” in an effort to serve jadedappetites and make instant money.

If Nihalani and his band have doneIndian creativity a disservice, it is that theyhave actually ensured a dropping of stan-dards in future by scything a reasonably well-made and relevant film. If they had honoredit, the film would have done what it intendedto...focus attention on a major issue inPunjab...no more, no less. And it would haverun its course.

It should never have become a politicalpawn or been given such dimensionsof grandeur.

NEW, UGLY ERA?Now, that the genie is out of the bottle, it isnot going back. Brace yourself for the uglyera of Indian cinema where all will be laidbare. Subjects like pedophilia, rape ofminors, child trafficking, sexual deviationswill be exploited and packaged for the public

CONTENTIOUS CHIEF(Above) Censor Board

chief Pahlaj Nihalani;(Below L to R) Poster ofDaddy, a film on alcohol

abuse; a still from EkDuje Ke Liye, on

inter-caste love

MY SPACE/Censorship

36 July 15, 2016

Anil Shakya

because, after all, aren’t they as valid as nar-cotics doing the dirty in Punjab?

And what if these films titillate when theyshould teach, what if the large percentage ofthem is gross when they should be gracefuland sensitive in dealing with such issues?After all, sleaze, smut and violence are nowgoing to be given a free pass and the CBFCwill let the films slip through their netbecause the brouhaha is not worth it. Anemasculated CBFC is worse than none at all.

The subtlety of this unpleasant by-prod-uct of the legal fiat is lost on most peoplebecause they fail to understand that the UdtaPunjab restoration could be interpreted as alicense to make bad films in the future andexploit the unspeakable for commercial gain.The excitement in the movie industry is pal-pable. The ogre has been slain.

CBFC FAILSThe Bombay High Court decision shouldnever have happened because the CBFCshould have appreciated good cinema,regardless of the harshness of the storylineand allowed it to thrive. By throttling it andgiving it a political overtone, the CensorBoard failed in its duty to be the custodian ofsincere art. You don’t have to like a film ordislike it for it to be relevant and meaningful.

Cinema is a two-sided coin. It opens eyes,highlights troubling issues, educates, focusesattention and writes history, bringing thepast alive again. It is also deceitful, fleeting,nebulous, clever, manipulative and rewriteshistory to suit its maker and its audience. As

a result of all these contradictions, it largelyfalls under the canopy of entertainment.How much of an impact it makes is a question whose answer is still up for grabs.

The Godfather series did not shut themafia down in the US. A slew of war films,underscoring the futility of war did not endfoe versus foe. In the past 50 years, therehave been 15 days of peace. Go figure. Filmson genocide did not sheath the killer’s knife.The Boko Haram cadres are not impressedby Beasts of No Nation and still recruit childsoldiers.

Crime shows by the dozen did not impacton the criminal community. On the contrary,the hi-tech feed into scripts and the hardresearch that goes into non-fiction blurs theline between imagination and reality and

SEIZING THE STORY(Clockwise from below)A poster of My Brother Nikhil; No One Killed Jessica; astill from The Godfather


ed a Page 3 glimpse into the uptown worldbut justice was not fast-tracked. Rang DeBasanti set the frustration of Indian youth tomusic and may well have impacted negative-ly on student movements, which was clearlynot the aim.

Take Chak De. India got into the finals ofthe Champion’s Trophy hockey in Londonrecently and India did not watch...so muchfor the national sport. Bhaag Milkha Bhaagwas inspirational but no athletics programcame out of it.

MORE DOCU-FICTIONThat said, in some tangible fashion, cinemaverite (veracity) does open a window andbring to the fore dirt we would rather keepunder the carpet. It is a start and done withgood intent, will pry a window open. The wayto go is docu-fiction. Unfortunately, shortfilms and documentaries are not a seller inIndia and get no broad-based audiences.

When the judiciary restored Udta Punjabto its original robustness, it might have beenwell-advised to add a few codicils. The mostimportant of these would have been to stateunequivocally that Udta Punjab is not a freepass to the cinema industry nor a green cardfor its more salacious and crude productions.Don’t engage in premature celebrations.

It could also have considered the add-onof a short documentary film on a similar subject in the halls that exhibit a particularlythemed movie as part of a new awareness.That would add authenticity and muscle to the feature film. For example, the much-maligned JNU made Substance Abuse andPocket films made Withdrawal. These wouldbe hardly 15 minutes extra but if made mandatory along with the main filmwhen the subjects coincide....that would havegiven a welcome credibility to the UdtaPunjab drama.

Till then, the “victory” that the judgmentsignifies to Bollywood and its regional partners is only limited to separating the artsfrom the state and removing the politicalovertones because it does not suit a party in power. To read more into it is to makePandora’s Box look like gold dust.

(The writer is a columnist and a former editor)

IL

often gives useful data and information to anti-social elements. By that token, UdtaPunjab will not end the drug stranglehold inPunjab.

SOCIETAL CHANGE?Taare Zameen Par underscored the plight ofchildren with special needs but how muchchanged in the public? When Daddy wasmade about alcoholism (a common feature innearly every family unit) two decades ago, didit change things? Not really. I watched Peepliwith shudders of sadness. But collectively,how much difference did it make to the plightof farmers or their suicide rate? Ek Duuje keLiye did not eradicate caste bias. On the contrary, cinema sometimes unwittinglyemphasizes ills and worsens them.

Caste and religious divides still flourishand we have more aggressive expressions nowthan we did then. My Brother Nikhil did notrepeal Article 377 which criminalizes theLGBT brigade. No One Killed Jessica provid-

REEL REALISM (Above) A still from

Peepli Live that tookup the subject offarmer suicides;

(Right) A poster ofTaare Zameen Par, asensitive portrayal of

learning difficulties

Now that theCensor Board

has been givena celluloid

vasectomy, theonus does fall

on the filmmakerand the

script-writer, onTV and on

media in generalto ensure that

it behaves responsibly and

does not go for broke.

MY SPACE/Censorship

38 July 15, 2016


NATIONAL BRIEFS

— Compiled by Tithi Mukherjee

New labor law fortextile sectorThe Union Cabinet has

approved a `6,000-crorepackage for the textile andapparel sector and has introduced new labor laws. A key change is an increasein overtime for workers,which would not exceedeight hours a week, translat-ing into nearly 90 hours over

three months. “It’ll be advantageous for the industry as well as labor,”said A Sakthivel, who represents industry lobbygroups. The move is expectedto provide flexibility in hiringbut is unlikely to result inany higher burden on companies.

BJP Rajya Sabha MP Subramanian Swamyhas alleged via Twitter that the economic

affairs secretary, Shaktikanta Das, is involved ina property case linked to Congress leader PChidambaram. This prompted Finance MinisterArun Jaitley to sharply defend the official. “Anunfair and false attack on a disciplined civil ser-vant in the finance ministry,” tweeted Jaitley.

The Medical Council of India (MCI) isset to be replaced by a Medical

Education Commission that will havethree independent wings to oversee cur-riculum, accreditation of colleges andmedical ethics. This new commissioncould be run by eminent personalities

from the medical field, who will beallowed to continue their professionalcommitments. The proposed commissionis slated to be an umbrella organizationat the top with a mandate to regulate andmonitor medical education and practices.“The plan is to totally disband MCI andset up an entirely new entity,” said asource to The Times Of India.

MCI to be disbanded

The Congress has cried foul as the Central Information Commissionissued showcause notices aimed at bringing political parties under

the ambit of Right To Information (RTI) Act. While notices wereserved to national presidents and general secretaries of other politicalparties, Congress president Sonia Gandhi is the only party chief whohas been named in the notice. The CIC issued showcause notices toBJP national president, president/general secretary of the NCP andthe BSP and general secretaries of the CPI(M) and CPI over a com-plaint filed by RTI activist RK Jain and 16 other applicants. However, the Congress has called it a conspiracy, alleging that SoniaGandhi alone has been named.

Congress cries foul as CIC notice names only Sonia

Jung summonedfor probe

Delhi assembly Deputy SpeakerRakhi Bidlan announced that

Lieutenant Governor Najeeb Jungwould be summoned by the peti-tions committee of the House forquestioning in five cases filed withthe Anti-Corruption Branch in 2014.Two of these complaints had been

filed by MLAs RajendraGautam and SomnathBharti with SpeakerRam Niwas Goel. Aletter was sent to Jung

in the connection.

Swamy accuseseconomic affairs secy

Area ofDarkness

After putting out a draft forest policy, the government suddenlybacktracked in panic.If it had got through, itwould have seen moreareas getting commercialized,adversely affectingecologyBy Ramesh Menon

IN a bid to bring one-third ofIndia under forests and revivedegraded areas that are collaps-ing with immense biotic pressure,the NDA government floated adraft national forest policy inmid-June and asked for com-

ments from the public and stakeholders byJune 30. It had proposed to levy a green taxto supplement the resources and also giveaway forest land to the private sector to growplantations that would help industry.

However, just ten days after AK Mohanty,deputy inspector general of forests (forestpolicy division) issued an office memoran-

ACTS & BILLS/Draft Forest Policy

40 July 15, 2016

Kh. Manglembi Devi

dum inviting comments from the public andstakeholders on the new draft forest policythat was also put up on its website, the envi-ronment ministry in a surprising somersaultsuddenly announced that it was just a studyand not the forest policy! According toinformed sources, this is because there was alot of opposition to the draft which allowsprivate companies to carry out industrialplantations in forests among many otherthings. These are not in the interests of dwin-dling forests or the protection of forest rightsof those who live off forest produce. Withcrucial state elections coming up next year,the government does not want to be seenpandering to the industry which this draftwas proposing to do.

The office memorandum dated June 16

(File No 1-1/2012-FP (Vol.@) clearly states:"Ministry is in the process of revising thepresent national foreign policy 1988. A draftnational forest policy in this regard has beenprepared and is enclosed. All stakeholdersare requested to send their comments if anyby June 30, 2012."

Now, a new document of the environ-ment ministry says that what wasput on the website was just a study

of the Indian Institute of ForestManagement, Bhopal. Much before this som-ersault, India Legal had spoken to theInstitute officials and they said that they hadresearched for many months visiting 100 vil-lages to create this draft. However, S Negi,director-general, forests, now says that


YouWall.com

the study is only one of the inputs for the pro-posed forest policy. He has not indicatedwhen it will be out.

The draft talks of protection and man-agement of other ecosystems like alpinemeadows, grasslands, deserts, marine andcoastal areas.

Dr GA Kinhal, Director, IIFM, told IndiaLegal: “We have shifted the focus fromforests to landscapes, from canopy cover tohealthy eco-systems and from joint forestmanagement to community forest manage-ment. We want to improve the health andvitality of forest eco-systems to ensure ecological security and conserve biologicaldiversity.”

This draft was expected to guide the com-plex management of forests of India in thenext few decades. The last policy was made28 years ago. At present, India has a forest

cover of only 24.16 percent, according to theIndia State of Forest Report released inDecember 2015.

What is disturbing is that while this“study” talks of ensuring largerareas under forests, it does away

with a similar target for hill and mountain-ous regions to maintain two-thirds of thegeographical area under forest cover. It isprobably a window created to execute com-mercial operations.

Clearly, the Modi government wants topush private investment in the forestry sec-tor. In order to ensure larger production ofwood through farm forestry, the policy aimsto create contracts between industry andfarmers. “Large-scale expansion of agro-forestry and farm forestry should be encour-aged through commensurate incentives andoperational support systems such as loweringthe input costs and enabling access to rea-sonably priced quality planting material,” thedraft said.

Chandra Bhushan, deputy director gener-al, Centre for Science and Environment,warns that if forests are handed over to the

Over 1.21 million hectares of forest landwas diverted since the eighties to make wayfor as many as 23,784 non-forestry propos-

als like mining and industrial projects.

42 July 15, 2016

Photos: UNI


private sector, vast stretches would be con-verted to monoculture plantations to cater towood-based industries like pulp and paperand would exclude forest dependent commu-nities. The degraded forests that will behanded over to the private sector were once ahealthy green eco-system and got destroyedby sheer neglect. If forests are managedproperly, they will have the potential to sup-port demands of both forest-dependent com-munities and the industry if meaningfulpartnerships are worked out, said Bhushan.

States that showed improvement intheir forest cover last year were: TamilNadu, Jammu & Kashmir, Uttar

Pradesh, Kerala and Karnataka. The stateswhere it substantially worsened were:Mizoram, Telangana, Uttarakhand, Naga-land and Arunachal Pradesh.

Haryana, which has a very poor forestcover, may find that most of its shrub forestswill not get the protection it needs under thenew policy as it does not recognize it asforests. Vast tracts in the Aravalis which areover 11,500 hectares will then be convertedfor commercial use as the pressure builds

If forests are handed over to the private sector,

vast areas would be converted to plantationsto cater to wood based

industry.—Chandra Bhushan, deputy

director general, CSE

We want to focus onlandscapes, healthy

eco-systems and community forest

management to improve forest eco-systems.

—Dr GA Kinhal, director, IIFM


GRIM REALITY(From left) Numerous hill areas have beendevastated with mining; those who live onforest produce are seriously affected withforests shrinking; a large part of the Aravallishave been seriously degraded

IL

up from the industry to do so.The “study” said that there was a need for

exercising restraint on how forest land wasbeing diverted for non-forestry purposes likemining, quarrying, dams, roads and otherlinear infrastructure. One way was to usestate-of-the-art technology that would mini-mize pollution and damage, it said.Government records indicate that around1.21 million hectares of forest land had beendiverted since the eighties to make way for asmany as 23,784 non-forestry proposals. Mostof them were mining and industrial projects.Of them, around 4,00,000 hectares were inMadhya Pradesh and over 1,00,000 hectareswere in Maharashtra and Chhattisgarh.

For many years, there was a grouse thatconcerns of forest dwellers and localcommunities were overlooked. This

policy mentions that there is a need to devel-op responsible ecotourism models that focuson conservation which would also supple-ment livelihood needs of local communities.

While the “study” said that gram sabhas orvillage councils can be roped in to take overmanagement of forests, their plans wouldhave to be vetted by the forest department.The new policy does not seem to agree withthe Forest Rights Act promulgated in 2006

which empowered tribals and forest dwellersto take back the land that the forest depart-ment had taken over from them. The Act hadgiven communities complete managementcontrol over their lands with very little role forthe forest department to play.

Ajay Kumar Saxena, program manager,forestry, Centre for Science and Environmentsays that this draft did not address new chal-lenges like climate change but misses criticalissues like forest rights, joint forest manage-ment and protecting interests of farmerspracticing farm forestry. “It does not discussissues of compensatory afforestation and itsurprisingly does away with the requirementof having two-thirds of area in mountain andhill regions under forests. This is a completedeviation from the 1988 forest policy. It setan ambitious target of increasing forest car-bon stock by one-third of the existing stock bythe end of next decade which is quiteunachievable and far more ambitious thanforest carbon goals submitted by India to theUnited Nations Framework Convention onClimate Change, ” Saxena added.

If it had gone through, this idea of pro-moting commercial plantations on forestland would have harmed the interests of millions of farmers who are practicingfarm forestry.

Around 1.21 million hectares of

forest land wasdiverted since the

eighties to make way for as many as 23,784

non-forestry proposals like

mining and industrial projects.

44 July 15, 2016


Photos:UNI

NO HOLDS

BARRED

NDIA EGAL EEEL June 15, 2016

`100

www.indialegalonline.comNISTORIES THAT COUNT

40

0426

Where are the laws against domestic slavery? Choose the ethical path —Justice L Nageswara Rao of Supreme Court

Practising in uncle’s court

Inderjit Badhwar

Navank Shekhar Mishra

Law grads don’t have to follow the beaten track as a new world of alternate opportunities awaits them

By Sucheta Dasgupta 10

Careers Galore

Shobha John Fly by error 56

Neeta Kolhatkar Jiah Khan:

interest 18

Ramesh Menon UK’s Supreme Court restrains press 66

LEGAL STUDENTS

imbroglio

that wasn’tBy Meha Mathur 62

NDIA EGAL EELMay 31, 2016

`100www.indialeg

alonline.com

NI STORIES THAT COUNT

Ramesh Menon and Ajith Pillai

talk to leading jurists and journalists

PLUSFali Nariman on SLAPP suits

Is freedom of speech

under threat from

corporate law suits?

RULE OF

GAG

5420Exclusive Profiles:

New SC Judges

Inderjit Badhwar

Are Jaitley’s Fears

of the Judiciary

03

Neeta Kolhatkar

Court’s Beef

Ruling in Maharashtra

28

Shobha John

Tackling Terror in the

Skies 62

Shame in God’s Own Country

By Naveen R Nair

adhway’s FeiciaryRakesh Dixit

Court Negates Job

Quotas 46

12

NDIA EGAL EEL June 30, 2016 `100

www.indialegalonline.com

NI STORIES THAT COUNT

44Euthanasia: Government Tackling Death Wish By Ramesh Menon

Supreme Court Justices Dipak Misra and Shiva Kirti Singh deliver a blockbuster judgment to protect those accused from frivolous arrests

By Inderjit Badhwar 08

A Powerful Blow for Human Rights

Vipin Pubby Jat quota: New politico-legal calculus 40

Kumar Rajesh Government slept as Mathura burnt 36

Usha Rani Das & Tithi Mukherjee Lawyers on a summer holiday 78

By

sra and Shiva Kirti Singhose accused from frivolous arrestswar 08

Ajith Pillai explains Modi’s globe-trotting and the nuclear matrix 26

Justice Shiva Kirti Singh Justice Dipak Misra

��

��

��

��

��

��

�� !"�� #��`��$

�� "��

%��"��!"��&�� `�'( �$�� !"��)�� #��*�"��"��*��+� ��,��)��"��*��+� ��-.��/0.�1�"��2" ��.��3��45��6�7(89(-

,��:�� &&��&��*� ��"��;�#��<��"��")��&��

SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS

For advertising & subscription [email protected]

=��.�3�#�"� ��<��")��)��3��3�+�1+��>�� )��#

Don’t miss a single issue of this independent, scintillating new fortnightly magazine and get special discounts for yourself and your friends

,��<�� ,��4=��6 ��3��"�� *��4`6 =�"�&��4`6 =�"��*��4`6 ?��*��

8�=�� 7;�3��"�� 7.;(( � 8.7(( � 8.7(( � '(?

7�=�� ;0�3��"�� ;.0(( � 8.-7( � 7.00( � /(?

ACTS AND BILLS/Draft Laws on Water and Groundwater

The National Water Framework Billand a Model Bill for Conservation,

Protection and Regulation of Groundwater are meant to

regulate the use of water. However,they are vague and the government

has the final say in its use By Dinesh C Sharma

In Muddy Waters

THERE has been a lot offocus recently on cleaningup major rivers like theGanga and the Yamu-na,depleting groundwaterlevels and linking upsome rivers. While there

are a large number of legal instruments avail-able to combat these issues, they have nothelped in either preventing pollution, degra-dation of the water system or in handlingwater-related disputes.

Among the plethora of laws that govern

46 July 15, 2016

rivers are state Irrigation and Drainage Acts,Interstate River Water Disputes Act, 1956,River Boards Act, 1956, Interstate WaterDispute Tribunal Awards and EIA Notifica-tion of September 2006, besides WaterPrevention and Control of Pollution Act 1974and the Environment Protection Act of 1986.Yet, there is no law that mandates that pere-nnial rivers should have freshwater flow allround the year even when a dam is construct-ed or water is diverted for power projects.

During the British era, there was an actcalled River Conservancy Act (Madras Act IV

of 1884) but it had more to do with regulat-ing the use of land within river banks ratherthan the river itself. The Waterman of India,Rajendra Singh, has been demanding awater security law to guarantee equitableaccess of water for all. Some states do havelaws for groundwater regulation, but theirimplementation is lacking.

NEW LEGISLATIONIn the context of all this, the central govern-ment has made a move to bring in new legis-lations. A committee was constituted underthe chairmanship of Mihir Shah, formermember of the Planning Commission, toprepare drafts of two bills—National WaterFramework Bill and a Model Bill for Conser-vation, Protection and Regulation of Gro-undwater. As the name suggests, the Nat-ional Water Framework Bill provides anoverarching national legal framework underwhich legislation and executive action onwater at all levels of governance can takeplace. The draft claims that it is based on“principles for protection, conservation, reg-ulation and management of water as a vitaland stressed natural resource”.

The draft bill on groundwater, on theother hand, is supposed to be used by statesas a model for regulating groundwater. Itsays it’s based on “the principles of subsidiar-ity, equitable distribution in an integrated

SUSTAINING CIVILIZATION

Devotees take adip in the Ganges

at Rishikesh

PRECIOUSRESOURCEThe poor in India facea daily struggle forwater, like in SanjayColony in South Delhi


Photos: Anil Shakya

approach”. It reiterates that the state shouldact as a public trustee of groundwater, whichshould be treated as “a common poolresource to make sure that groundwater isprotected, conserved, regulated and man-aged”. The two drafts have been opened upfor public debate.

The National Water Framework Bill is nota law by itself but a framework for specificlegislation relating to water, as well as execu-tive actions. It talks of “Right to Water forLife”, but the terminology used is rathervague. It says that “every person has a right tosufficient quantity of safe water for life with-in easy reach of the household regardless of,among others, caste, creed, religion, commu-nity, class, gender, age, disability, economicstatus, land ownership and place of resi-dence, provided that the precise quantity ofsafe water for life shall be determined by theappropriate government from time to time”.So while right to water is being offered, it isnot absolute but will be defined by the gov-ernment from time to time. Water has beendubbed a “common heritage of the people ofIndia” for everyone to use but “subject to rea-sonable restrictions”.

COMMON RESOURCEIn its natural state, such as rivers, streams,springs, natural surface water bodies,

aquifers and wetlands, water is acommon pool resource, not ame-nable to ownership by the state, com-munities or persons. While water is called a common heritage, thestate has been made a trustee (“Thestate at all levels holds water in pub-lic trust for the people and is obligedto protect water as a trustee for thebenefit of all”). In effect, the govern-ment will have full control of allwater resources.

“River rejuvenation”, a pet subjectof the government, has been codifiedin the draft framework bill. It saysthat “appropriate government shallstrive towards rejuvenating river sys-tems with community participation,ensuring: “Aviral Dhara” (continu-ous flow in time and space includingmaintenance of connectivity of flow

in each river system); “Nirmal Dhara”(unpolluted flow so that the quality of riverwaters is not adversely affected by humanactivities) and “Swachh Kinara” (clean andaesthetic river banks). The use of the word“aesthetic” means that the government isopening doors for riverfront development—along-standing demand of real estate andengineering lobbies. The bill has sections onwater quality, river basic management plansand water security plans.

However, expert opinion on the utility ofthe two drafts is divided. “Both bills are onsubjects that are essentially the domain ofstates as per India’s constitution. It is up tostates to adapt, enact and implement thegroundwater bill. The Framework Bill alsodepends on approval from some state legisla-

The NationalWater

Framework Billsays that while

the right to wateris being offered,

the precisequantity of safe

water for lifeshall be

determined bythe appropriate

governmentfrom time to

time.

UPHILL TASK“Nirmal Dhara”, unpollutedflow of a river, is one of the

aims of the government

LOPSIDED VIEWThe riverfront of Sabarmati is the preferred modelamong pro-development lobbies

48 July 15, 2016

ACTS AND BILLS/Draft Laws on Water and Groundwater

Anil Shakya

IL

tures before the center can pass it. Even then,it will only remain like a guideline for statesto follow, it cannot be a strictly enforceablelaw,” explained Himanshu Thakkar of SouthAsia Network of Dams, Rivers and People.

Manoj Misra of Yamuna Jiye Abhiyansaid: “While the water Framework bill has alot to commend it, what disturbs one is itstotal anthropomorphic focus, as if no otherspecies other than man inhabits the planetEarth and all the water that it contains ismeant exclusively for human benefit and use.This attitude is rather strange as the Bill oth-erwise has several forward-looking features.”

LIP-SERVICEMoreover, operationalizing words like “AviralDhara” are challenging when big dams arebeing constructed in the hills, reducingmighty rivers to dried-up streams. “If you seethe track record, Aviral Dhara, Nirmal Dharaand now Swachh Kinara amount to just pay-ing lip-service. There is absolutely no movefrom the center to take any effective or deci-sive move to achieve such flows even for Gan-ga, leave aside other rivers,” said Thakkar.

Further, the institutional mechanism pro-posed under the model groundwater bill canonly further complicate its governance.Under the proposed law, every gram pan-chayat will be required to constitute agroundwater sub-committee as part of thevillage water and sanitation committee andbe vested with all the functions and powersrequired to protect and manage groundwaterresources. In cities, every ward of a munici-pality, where groundwater is extracted foruse, shall form a Ward Groundwater Commi-ttee. These committees will determine the

minimum quantity of water for life to be sup-plied from groundwater and/or surfacewater, depending on their respective avail-ability. The ward committees will also pre-pare a “ward groundwater security plan” andpresent it to a ward sabha for approval.

Thakkar pointed to the fact that the cen-tral government had circulated a draftgroundwater bill in the 1990s. “Only a fewstates adapted it. But there is no real regula-tion of groundwater happening anywhere inthe country. Even the constitution of CentralGround Water Authority under the Env-ironment Protection Act 1986, followingSupreme Court orders in 1996, has been acomplete failure,” he said.

“The center does not seem particularlyserious about groundwater regulation. Oth-erwise, it could have easily mandated imple-mentation of groundwater regulation asgiven in the model bill or could have directedregulation of groundwater in smart cities andsuch other centrally funded schemes,” saidThakkar.


Manoj Misra of Yamuna JiyeAbhiyanWhile admitting that theWater Framework Bill hasseveral positive features,he expresses surprise thatits focus is totally anthropomorphic, as if nospecies other than maninhabits the planet.

Rajendra Singh, Magsaysayaward winner and water activistAlso called the Watermanof India, he has beendemanding a water security law to guaranteeequitable access of waterfor all. But not all stateshave laws for groundwater regulation.

IT is said that radical changeoften happens at a snail’s pace. Itfurther slows down when itinvolves the government andthere are vested interests keen todecelerate the process. It wasway back in 2002 that the Nat-

ional Health Policy document strongly rec-ommended that an act be passed “within ayear” to regulate the burgeoning privatemedical sector. It took all of eight years forthe Clinical Establishment Act (2010) to bepassed and two more for the rules to beadopted in 2012. But today, six years after thelaw came into being, it is still not operationalbecause the standards have not been final-ized. There are also gaps in the law whichneed to be rectified for it to be effective.

It is in this context that the recently

ACTS & BILLS/ Clinical Establishment Act (2010)

Only if this Act becomes operational and brings into itsambit patients’ rights, will the unregulated private medical

sector become accountable and credible, says a new book by two activist doctors

By Ajith Pillai

A LegalPrescription

50 July 15, 2016

released book, Dissenting Diagnosis, (Vin-tage Books, Random House India) by twodoctors—Arun Gadre and Abhay Shukla—becomes relevant. It is not merely a book oran emotive plea by them for better regulationof the private medical sector. It is a powerfuldocument based on interviews with 78 doc-tors from across the country. Those inter-viewed include professionals from both pri-vate and public facilities, some of whom haveidentified themselves and are well-known.Others have chosen to remain anonymous.

MEDICAL MALPRACTICEWhat comes through from their various tes-timonies is the shocking story of medicalmalpractice, gross negligence and financialexploitation of patients at those hospitalswhich are run purely for commercial consi-

derations. The doctors reveal that there islarge-scale dissatisfaction among patientswho rush to these private hospitals over thequality of services, unaffordable costs of careand unnecessary procedures and surgeriesconducted.

The problem is further compoundedbecause in India 80 percent of outpatientsand 60 percent of inpatients, according toWHO estimates, rely on private health carefacilities which are largely unregulated andunaccountable. This dependency, expertsagree, reflects the neglected and overworkedpublic healthcare system.

That corruption goes on unchecked and isvirtually institutionalized in the private sec-tor is an open secret. Two years ago, theBritish Medical Journal carried a piece by Dr David Berger—“Corruption ruins the

The ClinicalEstablishment Act(2010) has many positives, according tohealth activists and doctors. Here are somekey ones:

� Mandates registrationof all clinical establish-ments including patho-logy labs and imagingcenters. It covers all recognized branches ofmedicine, includingAyurveda andHomeopathy� Makes it mandatory forclinical establishments todisplay rates for services� Fixes rates that can becharged and defines astandard range� Provides for standardtreatment guidelineswhich can ensure rational care

What needs to be done� Ensure social regulationof the private medicalsector. A multi-stakehold-er body of both citizenand patients’ groups aswell as doctors mustreview decisions takenby legal authorities� Ensure patients’ rights.There must be a people-friendly redressal system � While making regula-tions operational, theconcerns of genuinecharitable hospitals andtrusts working in tribalareas and the hinterlandmust be considered� The law must becomeoperational nationally

Pluses inthe law


Photos: UNI

doctor-patient relationship in India”—whichshocked many in the establishment. Equallyrevealing was an editorial written in responseto it by Dr Samiran Nundy, noted gastroen-terologist and surgeon at Delhi’s Ganga RamHospital in Current Medicine Research andPractice, a journal that he edits.

SHOCKING INVESTIGATIONSTo quote Dr Nundy: “The temptation to dounnecessary investigations like CT scans(1500 rupees cut) and MRIs and performunnecessary procedures in the form ofCaesarean sections, hysterectomies, appen-dicectomies and other operations for cashpayments must be difficult to resist. And thisdoes not only affect the doctor in a singlehanded practice. In many of our five star cor-porate hospitals, where the main motiveseems to be profit for the shareholders, thereis an institutionalized system of so called‘facilitation charges’ or fees for ‘diagnostichelp’ given to the physicians who referpatients regularly and for expensive proce-dures like organ transplants which may reach1-2 lakh rupees....

“The senior doctors we are told, whosepay is in astronomical figures, are visited byneophyte financial experts at the end of everymonth with sheafs of financial data andasked to justify whether they deserve thesalaries being paid especially when the rev-enue they have generated for the hospital

from investigations and operations falls shortof certain set goals.”

Some of the experiences recounted inDissenting Diagnosis reiterate the pointmade by Dr Nundy. In fact, some of the nar-ratives are so shocking that they almost seemunbelievable. Here are a few examples: � According to doctors, pathology labs notonly give cuts to doctors who send patients tothem for elaborate and expensive tests butalso help by providing manipulated or falsereports. Dr Vijay Ajgaonkar, a senior dia-betologist from Mumbai, revealed how apathologist, acting on the suggestion of adoctor who referred a patient, declared thelatter diabetic when he had normal bloodsugar levels. This act rendered the patient thedoctor’s lifelong client!

Even more shocking is what another doc-tor recounts. Some pathology labs, he says,misguide parents to believe that their new-born has jaundice. This is simply done bytaking out printouts of bilirubin tests onresult sheets with the normal range for adultson them. Even educated parents are unawarethat for adults 1mg of bilirubin in the bloodindicates danger. However, in newborns,mild jaundice is common and only bilirubin

Dr Samiran Nundy, surgeon at Ganga RamHospital, Delhi

He says even senior doctors areunder pressurefrom neophytefinancial expertsto justify whetherthey deserve thehefty salariesbeing paid.


The Clinical Establishment Act 2010 wasintroduced to regulate the medical sec-tor. But it has not quite taken off....Well, the Act was passed in 2010, the ruleswere adopted in 2012. It is the first law that

“Add rights ofpatients to Act”Dr Abhay Shukla is a public health physician and convenor of Jan SwasthyaAbhiyan (People’s Health Movement –India) and co-author of DissentingDiagnosis: Voices of Conscience from the Medical Profession. He spoke to AAjithPillai about the need to effectively regu-late the private medical sector. Excerpts:

52 July 15, 2016

levels over 14 mg are considered dangerous.But panic sets in and the doctors and hospi-tals begin special treatment. � A doctor recalls how a senior surgeon at awell-known Mumbai hospital removed apatient’s kidney by accident. Reason: thedoctor was in a hurry and he prided himselfas the “fastest surgeon in the world”. The pro-cedure he had to conduct was a simpleremoval of a kidney stone. But in his haste,he accidentally cut the main artery to theorgan. As a result, the entire kidney had to beremoved. Afterwards, he dramatically explai-ned to the relatives that the stone had dam-aged the entire organ and he had saved thepatient’s life!� There are several instances of relatives notbeing allowed to shift a patient from one hos-pital to the other without paying an addedand highly inflated bill. One case which cameto the notice of the Bombay High Court wasthat of a private hospital where a young manwas admitted and operated upon following ahead injury. The family paid `2.76 lakh forthe treatment. But when it sought a discharge of the patient, it was denied tillsuch time that additional bills running intohuge amounts of money were cleared. The

addresses the issue of regulating privatemedical services in the country. Till now,you just had scattered laws differing fromstate to state which only related to regis-tration of clinics and hospitals. It did notlook at the functioning of these establish-ments. There was no accountability. Asfor doctors, there was a code of ethicswhich was supposed to be followed.From that perspective, the ClinicalEstablishment Act is a progressive law.

But unfortunately, even four yearsafter the rules were adopted, it has notbecome operational because the stan-dards have not been fully formalized. Bythat what we mean is for the Act to beeffective, the rights of patients have to beincorporated. That is a very importantcomponent. It does not find mention inthe rules or the Act.

In a public facility, there is somesense of accountability—an individual or

maybe a small group can have a dia-logue with the doctors or demandaccountability. But as a patient, this is not possible in a private facility unlessthere is a social process and a legalframework in place.

What about patients’ rights?Among other things, patients have a rightto proper medical treatment and emer-gency medical care. They should begiven adequate information about thenature, severity and likely outcome oftheir present illness, provisional diagnosisand confirmed diagnosis and professio-nal charges of the doctor or hospital.There must also be a grievance redressalmechanism in place.

Why is the law not becoming opera-tional? Is it because of politics?Much more than politicians, it is a sectionof doctors who are against any regula-

tion. There are also organizations like theIndian Medical Association which claimthey are the voice of all doctors in thecountry who are opposed to it. But thegood thing is that there are several doctors who want the Act to becomeoperational.

How has your book been received? Ithas delved upon touchy issues likemedical ethics, medical malpracticesand making hospitals and doctorsaccountable.The response has been positive and negative. Dr Arun Gadre, with whom Ihave co-authored the book, was recentlyin Hyderabad. He said several doctorscame up to him to tell him that theyagreed with what we have put down inthe book. There are several voices speaking up for transparency andaccountability.

The book co-authored by Arun Gadreand Dr Abhay Shukla (bottom) is a powerful document based on interviewswith 78 doctors from across the country.


relatives went to court and it ruled againstthe “illegal detention” by the hospital.

LURING DOCTORSPatients being kept endlessly on life supportsystem, uncalled for hospitalization in ICUsand being subjected to surgeries and proce-dures are now well-known. Pharma compa-nies introducing expensive formulations assubstitutes for cheap and effective genericmedicines and promoting the former by lur-ing doctors with sops and holidays abroadhave all been documented in the book.

The need for regulating the private med-

ical sector in the post-liberalization era whenit is displacing the public healthcare facilitycannot be overemphasized. Making privatehospitals and doctors accountable is a keyfactor but protecting patients’ rights is equa-lly, if not more important.

Dr Gadre and Dr Shukla’s submission isthat the Clinical Establishments Act must bemade operational on an urgent basis. It mustincorporate an accountability system thatinvolves all stake-holders, including civilsociety and patients, who are the end-users.Only if this is done will the unfair exploita-tion of patients be checked. IL


MY father is an ex-serviceman andhis medical expenses are cov-ered under the ECHS (Ex-Ser-

vicemen Contributory Health Scheme).His treatment, for the record, is free at allECHS affiliated hospitals. But is it? Thisexperience is an eye-opener.

My father was diagnosed with highurea and creatinine levels and on May26, 2016, was admitted to a private hospital in the NCR. After initial tests, hewas shifted to the ICU. What unfolded atthe hospital was both shocking andrevealing.

From the moment my father wasadmitted, I was presented with list afterlist of expensive medicines and dispos-ables to buy. These, I was told, were notcovered under the ECHS and hence, Iwould have to not only pay for them but

also procure them from the in-housepharmacy of the hospital.

Given that I had to shell out moneyfor ostensibly free treatment, I tried toascertain if there are any medicines notcovered by ECHS. I was informed thatmy father’s treatment ought to be sanspayment whatever the medicines admin-istered or procedures followed. I contact-ed a doctor, who heads the ECHS panelat this hospital. He agreed that as perECHS policy, the patient has to be treat-ed free. By the end of the discussion, heassured me that henceforth, I would notbe asked to buy things other than a fewexceptional items.

But despite that, I was asked to pro-cure expensive medicines and tubes formy father’s dialysis. When I protested, Iwas offered a discount. Frustrated by the

harassment, I finally called Major GeneralBam, MD, ECHS, who categorically toldme that I need not spend any moneyand the hospital must treat my father ona “cashless” basis.

Meanwhile—perhaps to get rid of aproblematic patient who was not payingup—I was suddenly informed that myfather might go into multiple organ fail-ure. His intestines were not functioning,his lungs had started accumulating waterand he had respiratory issues. I wasadvised to urgently shift my father to thearmy’s R&R Hospital or some other facility as his condition was precariousand he may not survive beyond two orthree days.

I panicked and with great difficulty Imanaged to shift him to a hospital inNoida. The first hospital for some strange reason refused to even providean ambulance for the patient’s transfer.In fact, just before my father was discharged, the hospital even said thathe needed to be put on BPAP (a breathing support equipment) for whichthey gave me a list of purchases tomake. I refused.

At the second hospital, my father wasadmitted into the emergency ward andsubjected to various tests to assess hiscondition. The doctors told us that hewas not in any danger. His intestineswere functional, his lungs were clear, hehad no respiratory problems. There wasno multi-organ failure.

We were misled by the first hospital.

— Amit Tyagi, joint director, FICCI

Misleading and exploitativeA first-person account of a harrowing experience in a private hospital

54 July 15, 2016

Facebook

FOCUS/ Security

Eight years after the 26/11 attacks, one would have expected the Maharashtragovernment to beef up coastal vigilance. But state officials recently informedthe Bombay High Court that they were still working on “interim measures”

WHILE hearing a PIL filed bythe NGO Janhit Manch onJune 17, the division bench ofBombay High Court com-

prising Justices Abhay Oka and AA Sayedpulled up the Maharashtra government forfailure to implement steps suggested inMarch this year by a government committeeformed on beach security. The public prose-cutor, Abhinandan Vaigyani, informed thecourt that the state has begun to take “inter-im measures” at which point the miffedbench questioned the state’s attitude.

“Since the time the GovernmentResolution (on beach security) was issued inSeptember 2006, do you have an account ofthe number accidents that have taken place?Ten years have gone by since the GR wasissued and all that you are telling us are theinterim measures the state government hasinitiated?” the bench said. Ironically, thecourt hearing came on the day after the sec-ond state meet on coastal security.

At the meet, chief minister DevendraFadnavis apprised Government of India rep-resentatives of steps taken to enhance coastalvigilance. The CM also suggested all landingpoints and non-major ports be brought undere-surveillance. A force for marine policingwould be created, Union Home ministerRajnath Singh said. The first meet on coastalsecurity was held on March 3, 2016, and acommittee formed under the chief secretary.

Justice Oka noted in the high court direc-tion: “The very filing of this PIL by Janhit

Manch was due to the failure of the govern-ment to implement the GR of 2006. Now wenote that there is failure to implement therecommendations made by the meeting con-vened by the chief secretary.”

Maharashtra has a lengthy coastline with72 beaches. Till now the state governmenthas only hired volunteers at a few beaches.This, despite the GR which specified thatpermanent lifeguards, boats and other meas-ures should be put in place at beaches con-sidered dangerous and vigilance stepped upalong the coast. The bench, in fact, noted thatthe state has dumped this responsibility onmunicipal corporations. It has asked thestate government to submit a compliancereport by July 31 and asked the petitioner tosuggest names of experts for suggestions.


ARE THEY VULNERABLE?Mumbaikars cool off at a beach

Guarding the Coastline

IL

By Neeta Kolhatkar in Mumbai

UNI

LEGAL EYE/Reforms

LegalReforms,Without

the Tears

THE economy, commerceand development of a coun-try depend upon the effi-cient working of the judicialsystem. In this age of a glob-al economy, we are depend-ent on inflow of capital,

technology and entrepreneurship from othercountries for our development. To attractthese, it is imperative that national and multi-national corporations view India as a busi-ness-friendly destination from all angles.

Unfortunately, this is not the case.Companies are presently wary of India as aplace for adjudication of disputes as India hasa poor record in enforcing contracts. In fact,the 2016 World Bank Report on “Ease ofDoing Business” has ranked India very low—at 178 out of 189—on the criterion of “Ease ofEnforcing Contracts”. The country’s 2015ranking on this criterion was the same. In fact,it takes on an average 1,420 days to enforce acontract in India and the expenditurerequired is 40 percent of the claim amount!Commerce and industry remain badly affect-ed as amounts running into trillions of rupeesget stuck in court cases.

To address this grave problem, ConsumerEducation and Research Centre (CERC),

A report submitted to the government by theConsumer Education and Research Centre,

Ahmedabad, suggests ways to clear thelogjam of cases that clogs our judiciary

By Kirti Bhatt

Amitava Sen

56 July 15, 2016

Ahmedabad, a national voluntary organisa-tion dedicated to consumer protection, sub-mitted a report on “Ease of EnforcingContract: Low Global Ranking of India andNeed for Reforms in Court Management” tothe government urging for the prime minis-ter’s intervention.

PROBLEM OF LONG DELAYSThe report highlights corrective actions thatcan be taken to expedite judgements whichwill greatly benefit the litigant and ensure hegets better service from the legal system. Thesimple procedural measures suggested donot require additional expenditure or legisla-tive amendments. Of course, a few issuesraised and corrective actions proposed in thereport may travel beyond the comfort zone ofthe Bar and the Bench. That is where, hope-fully, the top leadership in the governmentand the judiciary will take a firm stand in thelarger public interest.

Normally, in a civil suit in India, it takesbetween five and 25 years before a litigantgets justice, considering the appeals, revisionsand writ petitions which may be filed in thecase. The long delays in adjudication haveresulted in accumulation of more than 3.2crore pending cases in various civil and crim-inal courts, out of which about 10 percentcases are more than ten years old!Amendments made in the Code of CivilProcedure and other enactments with a viewto expedite adjudication of cases have failedto achieve any result.

Additionally, there are cases pendingbefore various tribunals. At the end ofDecember 2014, there were 61,784 casespending before Debt Recovery Tribunalsinvolving more than `3.76 trillion. In CES-TAT (Customs, Excise and Service TaxTribunals) and Income Tax Tribunals about99,000 and 90,000 cases are pending respec-tively. Such inefficiency of the system is animpediment for conducting business in India.

Our legal system is mostly a continuationof the legal system established by the British.The court administration system is devoid ofsound management practices. Though it hasadopted computerization, it falls short of thestandards in respect of data analysis, creationof transparency and fixation of accountabili-

ty. There are no MIS (ManagerialInformation System) reports, no compara-tive analysis of old pending cases, at least inpublic domain.

The judicial system lacks customer orien-tation. If a lawyer is travelling by air and if hisflight gets delayed, he would definitely like toknow the cause of delay. Likewise, it is nowtime to equalize the rights of litigants inrespect of communication of cause of delay.

ACTIONS FOR REFORMSRealistic Daily Case Board: Presently, about75 percent of cases listed on the board areadjourned and only about 25 percent of thecases are heard at length. This trend shouldbe reversed. This will save considerable timeof courts that is spent on adjournment ofcases. Often, calling out of all the matters onboard itself consumes about half a workingday of the court, leaving much less time foractual hearing of cases. This can be definitelyavoided by restricting number of mattersbeing placed on the board/cause lists forhearing in a day.Clarity on Adjournments: Frequentadjournments are a major cause for delay inadjudication of disputes. It should be notedwhich party is the initiator of the adjourn-ment—the lawyer of the plaintiff, the lawyerof the defendant or the court itself. Summingup the time availed by all three parties on thecase file will give a transparent picture

Normally, in acivil suit in India,it takes betweenfive and 25 yearsbefore a litigantgets justice, considering the appeals, revisions andwrit petitionswhich may befiled in the case.


IN DESPAIRCJI TS Thakur broke down during a conference in April, citing staff shortage and case pendency

UNI

about the cause of the delay to the litigant.Adoption of Modern Technology: Theadoption of modern technology and scientificmanagement practices can help the cause ofspeedy disposal. For example, if availabletechnology is used to send a short message(SMS) on the previous day to the litigant,concerned lawyers and witnesses about thehearing, the problem of likely adjournmentcan be thrashed out beforehand, avoidingunnecessary waste of time.Focus on Litigant: There is a need toempower the biggest stakeholder of the sys-tem—the litigant—with information aboutthe causes of delay in the system—on eachday of adjournment, rather than generally. Itis the litigant who initiates the case or seeksrecourse to his legal remedies. It is he whobears the costs and consequences – litigationcosts and consequences of delay.There is a need to involve him in each andevery stage of the proceedings, make himmore participative and responsible. At allhearing stages, the SMS should go to theparty concerned on each adjournment, show-ing who is the initiator of the adjournmentand the next date fixed for hearing.Management Expertise: When MBAs areengaged in every field, from hospital to trafficmanagement, why not use management

expertise in court management? Let the lat-est management principles be applied incourt case management for speeding up thedisposal of cases.Curbing Vacations: At present, on an aver-age the Supreme Court has 193 working days,high courts 210 days and trial courts 245days a year. If we argue that legal profession-als need vacation more than say doctors,journalists or IPS officers, it will be a travestyof justice. No one enjoys vacation exceptschools and courts.

In sum, for better functioning of the judi-cial system and better utilization of existingresources, the following three suggestionsshould be implemented: (a) application ofmanagement principles; (b) measures whichwill bring more transparency and accounta-bility; and (c) more involvement of thebiggest stakeholder of the system, i.e. the lit-igant, in the whole process.

As Dr VG Patel, chairman, CERC, puts it:“At a time when India is going out of the wayto attract foreign investments, our interna-tional rating of ease of doing business isadversely affected by investors’ concern aboutquick and sound legal recourse to contractualdisputes. Many reforms are feasible sansadditional expenditure or legislative changes.It makes sense to begin with them.”

LEGAL EYE/ Reforms

Our legal systemis mostly a

continuation of the one

established by the British.

The courtadministration

system is devoidof sound

managementpractices.

IL

58 July 15, 2016

Pramod Pushkarna

CAMPUS UPDATE


The Center for InternationalTrade Law of National Law

University (NLU), Odisha,plans to bring out a bookcomprising papers reflectingthe views of different authorson the issue of trade facilita-

tion under WTO. The bookwould be edited by Prof JaneWinn, professor of law at theUniversity of WashingtonSchool of Law, Seattle, and Prof Sheela Rai of the NLU.

The BA LLB (Criminology) students ofGovernment Law College, Ernakulam, have

raised a furor after it came to light that theircourse did not have the requisite Bar Council ofIndia recognition. Around 700 students hadenrolled for the five-year integrated degreecourse conducted by MG University. Sreejith S,representing the affected students, told reportersthat the college authorities and the varsity hadduped them. “They had enrolled students for thecourse without even having the BCI recognition,” he said.

The International

Journal of Legal

Insights (IJLI), a student-edited quarterly, hasannounced the publicationof its maiden issue, whichwould be out in August2016. The magazine willfocus on all aspects oflaw and would cover a variety of disci-plines. It will carry articles, notes, commentsand legislative briefs oncontemporary issuesrelated to economics,social and legal sciences written by stu-dents, research scholars, academicians and otherprofessionals. It will alsofeature extensive academ-ic writings. The journalhas called for papers forpublication in the maga-zine, with the deadline forsubmission of manu-scripts being July 30, 2016.

NLU Odisha plans new book

Ernakulam law course not affiliated

The Bar Council of India hasimposed a dress code on

the students of a CalcuttaUniversity-affiliated law college.The male students of HazraLaw College have been askedto attend classes in blacktrousers and white shirts while

the women have been told towear white sarees or white sal-war-kameez. The students haveprotested the order, saying thatsince they would be in

lawyers’ uniform once theyenter professional life, theyshould be allowed to wearcasual clothes at college.

TN college admissionprocess startsApplication forms for

the prestigiousthree-year LLB courseand five-year BA LLBcourses are out for theGovernment LawCollege, MaruthamalaiMain Road, Coimbatore.College principal KS Gopalakrishnan said that the sale ofapplication forms would be followed bycounselling in order tofill up the 1,262 seatsin the seven government law colleges in the state forthe LLB course and1,062 seats for the BALLB course. The application formswill be available from 10 am to 5 pm on all governmentworking days.

Law journal’smaiden issue

— Compiled by India Legal team

Dress code forHazra college

E-COMMERCE companiesare looking forward to theGoods and Services Tax(GST) as it will allow themto reach out to more cus-tomers by ending thescourge of entry taxes that

states impose on goods coming from acrosstheir borders. But they are anxious that aproposal in the draft policy that obliges themto collect GST at source does not go throughas it will be a huge compliance burden.

“The implementation of GST will enablemillions of consumers across the country tohave access to quality products at affordablerates,” the official spokesperson of Flipkart

MARKETS/ GST

A Boost for E-commerce?

This proposed scheme hasoutsourced tax collection tocompanies. But it is a moot question whether its benefits will be passed on to the customerBy Vivian Fernandes

said in a statement. “However, a specific pro-posal in the draft law relating to tax collec-tion at source (TCS) will prove detrimental tolakhs of small and medium sellers who dobusiness on e-commerce platforms.” The pro-vision is discriminatory, he said, because it isapplicable only to online sellers. Their work-ing capital will be blocked and profit marginsimpacted. TCS is applicable only to market-places, which are platforms like Flipkart andAmazon, that do not own goods but act asmatchmakers between customers and sellers.

WHAT A HASSLEThe TCS rate has not been specified. Morethan the rate, it is the hassle of collecting and

E-ENTREPRENEURS!Uber Asia business headEric Alexander (right) and

Telangana IT secretaryJayesh Ranjan (2nd from

right) at the launch of Tata and Uber’s new

partnership to facilitatemicro-entrepreneurship

60 July 15, 2016

Photos: UNI

depositing it with the government that wor-ries e-commerce companies. Flipkart says ithas 90,000 sellers. Amazon claims 85,000and their numbers are growing. Both of themdo millions of transactions. GST will have tobe collected from each of them and passed onto the government.

“The government has outsourced its taxcollection function to us,” director, taxation,of a large e-commerce company said. Whilethe company can write software to deductthe amount, it cannot vouch that the taxdeposited will be reflected in the vendor’saccount with the government. Vendorswould harass the company for mismatches.Relations would get frayed. The fear of getting entangled in needless litigation is real. “It could have a chilling effect on those intending to enter the e-commercebusiness,” said the executive, who did notwish to be named.

The idea behind TCS is to discourage eva-sion, which is said to be quite pervasive. Thebig players collect VAT (Value Added Tax)registration numbers of their vendors andverify their authenticity as part of Know YourCustomer (KYC) protocol. States like Delhiand Rajasthan require the companies to fur-nish VAT information returns so that they

can check whether vendors have paid tax ongoods sold online. “This is an alternative weare proposing,” the executive said. “We arewilling to provide details at a more granular level.”

Only businesses that sell to other busi-nesses (B2B) and marketplaces can get for-eign direct investment under India’s ecom-merce rules. An entity can sell its own goodsonline only under a single brand provided itis a manufacturer or has an offline (bricksand mortar) presence in the country.Elsewhere, players like Amazon.com follow ahybrid model. They sell their own as well asoutsourced goods.

MORE COSTSAnita Rastogi, tax partners at PriceWater-houseCoopers, a consultancy, admitted thatTCS would impose costs. “At PWC, we wouldlike the compliance burden reduced and

“MATCHMAKERS” INC(L-R) Anand Subramanium, business head of Olacabs;Shilpa Shetty Kundra at anAmazon event

Both Flipkart and Amazon do millions of transactions. GST will have to be collected from each of them and passedon to the government.


the vendor to pay GST,” she said. But sheappreciated that the policy has made specificdefinitions. An e-commerce operator is onethat directly or indirectly owns, operates ormanages an electronic platform that is eng-aged in facilitating the supply of any goodsand services or providing information thatenables the transaction, the draft policy says.

It defines an aggregator (Uber, Ola) as onewho owns and manages an electronic plat-form and enables a potential customer to con-nect with service providers under their ownbrand name. These services are regarded assupplied by the owners of the brand name.

Under the proposed taxation regime, VATand service tax will go. Instead, on everytransaction, state and central GST will haveto be paid. For transactions across state bor-ders, an additional integrated GST will bepayable. Sellers will be able to claim offsetsfor GST paid on inputs that go into the goodsand services they sell, but the set-offs will beagainst respective streams. So state GST paidcan be set off only against state GST chargedand not against central GST. Integrated GSTpaid, however, can be set off againstIntegrated GST charged, central GST andstate GST, in that order.

SERVICE TAXWill GST reduce prices? It should if sellersdecide to pass on some of the savings. It alsodepends on the GST rates. Currently, offlineretailers pay 15 percent service tax on rent,

which is a big item of cost forthem, but they cannot set it offagainst VAT. Since GST is acombined goods and servicestax, they can claim set-off. Soalso can online sellers for manyof the taxes that currently couldnot be set off.

Much will depend on theGST rates. Currently, there arequite a few goods where thecombined VAT and service taxrate is 17 percent. For a majorityof goods, the combined rate is 27percent. “We would be veryhappy if the GST rate was 18-20percent,” the tax director quotedearlier said.

Logistics companies like the Gurgaon-based Rivigo say they will be required to setup fewer warehouses. Currently, state gov-ernments try to discourage online purchasesfrom other states to minimize revenue loss(as VAT is a origin-based tax). They chargean entry tax.

Uttar Pradesh has increased the degree ofdifficulty for online purchases by requiringbuyers to fill a VAT form and give it to thecourier, if goods are sourced from otherstates. The rule is not applicable for salesmade by vendors based in the state or thosewho have a warehouse there.

Amazon has therefore set up two ware-houses across the Delhi border inGhaziabad. Since GST is destination-based,states will not discriminate against onlinecommerce. The decision to locate warehous-es will be decided by business need and notby tax compulsion.

To sum up, GST will certainly aid e-com-merce but a reduction in prices will dependon rates and the willingness of vendors topass on some of the tax offsets. It would bebest if the government stuck to its core com-petency of collecting taxes instead of palmingit off. Asking for information on sales madeby each vendor would be a better alternativeto requiring e-commerce companies to col-lect a part of the GST.

—The writer is a business journalist andwas with CNBC-TV18 for many years

Under the proposed

taxation regime,VAT and service

tax will go.Instead, on everytransaction, stateand central GST

will have to bepaid. For trans-actions acrossstate borders, an additional

integrated GSTwill be payable.

IL

FUTURE LOOKS BRIGHTTelangana minister Rajender(left) and Binny Bansal, COO

and co-founder, Flipkart,launch the company’s

largest automated fulfilmentwarehouse

MARKETS/ GST

62 July 15, 2016

� India, the world’s No. 3 polluter,has pledged to cut carbon emissionsby 33%-35% by 2030. India hasalso committed that 40 percent of the country’s electricity wouldcome from non-fossil fuel-basedsources, such as wind and solarpower, by 2030.

� Indian cities and rural areasare facing shortage of fire stationsas a little less than 3,000 suchunits are operating against therequirement of over 8,500. Thismeans a deficiency of about 65 percent.

� Maharashtra tops the list of stateswhere women have filed the maxi-mum number of court cases.According to the Supreme CourteCommittee, 20,94,086 cases werefiled by women in various courtsand constitute 9.58 percent of thetotal 2.18 crore cases pending in thevarious subordinate courts.Maharashtra tops the list where2,55,122 cases have been filed bywomen, followed by Bihar with2,16,599 cases.West Bengal (1,74,327), Karnataka(1,46,959) and Tamil Nadu(1,35,033) are close behind.

� As many as 460 listed firmsspent `6,337.36 crore towardsCSR activities in 2014-15.

� Five High Courts in India arefunctioning with over 50 percentvacancy. Allahabad HC, with a sanc-tioned strength of 160 judges, ismaking do with 79. The HC inHyderabad has 25 judges against asanctioned strength of 61. Karnataka HC has a sanctioned

strength of 62 judges but 33 posts are lying vacant. ChhattisgarhHC has 14 posts vacant of the sanctioned strength of 22. Madras HC has a vacancy of 37 out of 75 judges.

� 70 percent of Indians above 15years of age are non-vegetarians.

� Chicken consumption in Indiagrew at an annual growth rate of 5.9percent between 1992 and 2013.

� India's student population inthe 5-19 years age group hasincreased by 30 percent between2001 and 2011. Among Muslims,the number of students zoomedby 44 percent, and, among girlsby a staggering 53 percent. As a result, students now consti-tute 63 percent of this age groupamong Muslims. This is stillbehind the 73 percent amongHindus. Jains with 88 percenthave the highest student ratio in the 5-19 age bracket, followedby Christians.

� India is the fastest growing avia-tion market, clocking 22 percent risein domestic traffic, and the govern-ment hopes to increase the numberof flyers to 30 crore by 2022, fromeight crore currently.

� Delhi-NCR led job creationwith 2.6 lakh new jobs, claimingover 30.1 percent of the total 8.52lakh jobs created in eight Indiancities. About 89 percent of jobswere created in just five citieswith Bangalore, Mumbai,Chennai and Hyderabad trailingbehind Delhi.

—Compiled by Mahesh Trivedi

FIGUREIT OUT


While amendment to this act was meant to make access to morphine andother such opioids easier for those suffering from pain, stringent jail terms and fear of addiction means that few doctors prescribe them By Shobha John

WHEN Nidhi Gupta*, a mediaprofessional, was diagnosedwith breast cancer a fewyears back, she kept her spir-its up. A pleasant woman, she

was well liked by her friends and neighbors. Asthe disease progressed, Nidhi first had to getrid of one breast and undergo regular sessionsof chemotherapy and radiation. But as therampaging cancer took a hold of her litheframe, she had a relapse. She had excruciatingpain which was eased by small doses of mor-phine. Yet, she would get irritated at her care-givers, leaving them hurt and befuddled.Doctors slowly increased the morphine untilthey couldn’t give any more. She finally passedaway in peace a few months back.

MEDICINE/Narcotic Drugs and Psychotropic Substances Act

High onPAIN

GOD SPEEDPalliative careis low-tech,high-touch

64 July 15, 2016

Photos: Tom Price

Nidhi’s family was glad that they got mor-phine to ease her last days. This and otheropioids ease severe pain in diseases such ascancer, myocardial infarctions and postoper-ative pain. According to a UN report lastyear, some 5.5 billion people have limited orno access to proper pain relief treatment. It isbelieved that less than four per cent of the 10lakh in India who suffer from chronic paindue to cancer have access to morphine. Inmany cases, patients have begged their doc-tors for relief as they scream and thrashabout in pain, so much so that death ulti-mately comes as a relief.

SIMPLIFYING MATTERSWhile earlier it was difficult to procure theseopioids, amendment in the Narcotic Drugsand Psychotropic Substances Act in 2014 hasmade things easier. Registered agencies canprocure opioids for scientific or medicinalpurposes by obtaining a single licence fromthe Drugs Controller in place of the four or

PROVIDING SUCCORA nurse from Pallium India on a home visit inThiruvananthapuram

The Narcotics and Psychotropic Substances (NDPS) Act was originallypassed in 1985 and governs the control and availability of “narcotics” likemorphine and “psychotropics” like amphetamine. The latest amendmentwas done in 2014.

Lacunae in the 1985 Act �Did not adequately address the accessibility and availability issues ofthese drugs for medical treatment; makes it difficult for them to maintainlarge amounts of drugs which are often the only solution for lessening thepain of terminally ill patients. �Undermines the ability of healthcare institutions to gain access to essentialnarcotic drugs for the benefit of patients. �Requires these institutions to obtain licenses from a plethora of regulatoryagencies related to excise, drug control, health administration, etc.

Advantage of 2014 Act � It adopted a new category of “essential narcotic drugs” in Section 2 (viiia).These are drugs notified by the central government for medical and scientif-ic use and will be subject to central rules �Under Section 9(1)(a), these will apply uniformly in the country �No more need for the unwieldy and inept practice of obtaining multiplestate licenses for possession, transport, purchase, sale, distribution, useand consumption. —Mary Mitzy, advocate

Welcome amendment


After the amendment of the NDPS Actin 2014, has morphine become moreaccessible to those suffering fromchronic pain? The improvement in morphine availabilityhas increased only marginally. The proce-dural follow-up action, namely, declarationof “State Regulations” happened only inMay 2015. States now have to implementthe new regulations. It has not happenedeffectively anywhere. We expect that ourorganization will have to work with individualstate governments on a sustained basis tomake it happen, simply because there is alot of opiophobia (fear of opioid medicines).

Is the process of getting morphine forhospitals and pharmacies fairly easyafter the amendment? Prior to the 2014 amendment, all states haddifferent regulations as this was a “statesubject”. This resulted in huge disparities. Inmost states, procurement of medical mor-phine required four to five different licenseswhich were issued by different governmentagencies such as the Drug Controller,excise, etc. However, the new amendmenttransfers powers of legislation on ‘essentialnarcotic drugs’, including morphine, from

“Most doctors have not even seen a

tablet of morphine”Kerala leads in India for its

high degree of palliative care.And one of the foremost institu-

tions devoted to it is PalliumIndia. Its chairman, DR MR

RAJAGOPAL, who is also direc-tor, WHO Collaborating Centre

for Training and Policy on Accessto Pain Relief, tells SHOBHA

JOHN that proper implementa-tion of the amended NDPS Act

could help many cancer patientsin severe pain get access to

morphine. Palliative care, hesays, is “low-tech and high-touch”

and its staff is given a six-weekcourse to do this intensely satisfying and sometimes,

emotionally draining, work.

five needed earlier. Also, once the new amendment and regu-

lations are implemented, hospitals and clinicswould be able to stock it. But despite this Act,the ground reality is that there are still somelacunae before patients can get these drugseasily. Experts say that implementation of thenew law will be successful only if state govern-ments don’t bring in additional proceduralrestrictions. While the drugs controller of thestate is now the single agency for approval ofRecognized Medical Institutions, if as part ofhis normal enquiry he starts seeking concur-rence from other government departments,

the Act will lose its efficacy.Firstly, there are very few institutes which

offer palliative care or store morphine andother strong opioids such as methadone. Noone wants to take the responsibility for apatient who has got addicted to them. Butcan it lead to addiction? Experts say that therisk of addiction in the case of cancer is nextto nothing. However, when used for non-can-cer pain, which can go on to decades, there isa risk. One estimate says it could be as much as 10 percent. But guidelines recom-mend opioids for non-cancer pain only as athird-line measure. For short-term use of less than three weeks, there is no risk ofaddiction, they say.

FEAR OF ADDICTIONNonetheless, the fear of opioid addiction hasled to a plethora of laws in various countriesto contain their use even for medical purpos-es. But the International Narcotics Control

Two generations of doctors have not even seen atablet of morphine. There is a lot of unrealistic fear among the medical professionals. This willhave to be overcome by continuous education.

—Dr MR Rajagopal


66 July 15, 2016

the states to the central government.Now the drug controller of the state willbe the single authority to recognize med-ical institutions as “Recognized MedicalInstitutions (RMIs)”. Once the institutionhas that authority, it can procure mor-phine from an approved manufacturer.

Has there been a surge in demandof morphine after the amendment?No. We do not expect a sudden surge inrequirement. Two generations of doctorshave not even seen a tablet of morphine.There is a lot of unrealistic fear amongmedical professionals. This will have tobe overcome by continuous education.Unfortunately, the Medical Council ofIndia, despite an assurance given to theSupreme Court in 2012, has not includedpain management and palliative care inthe undergraduate curriculum. Nor hasthe Nursing Council of India done this inthe nursing curriculum.

Why is getting morphine so compli-cated in India when it is far easierin countries such as the US? Doctors, drug regulators and legislatorsare fearful when they think of the possi-

bility of their offspring getting addicted toa drug. And because they do not stop tolearn enough, they put in unrealisticrestrictions. The result: failure of the pur-pose and in the bargain, needless painand suffering, the extent of which isbeyond our power of imagination. Fearrules us. It robs us of our reason.

Is morphine expensive and arethere other medicines with thesame efficacy?A whole day’s supply of morphine for anaverage patient costs only `7. But manymanufacturers sell it at hugely inflatedprices. A greater risk is that many hospi-tals do not stock inexpensive morphinebut more expensive formulations (sus-tained released morphine which needs tobe taken only twice a day as againstinexpensive morphine which needs to betaken 5 to 6 times a day).

In India, the only possible alternativeto morphine is Fentanyl. It cannot betaken orally; it will have to be taken eitheras continuous intravenous infusion or aspatches applied to skin (transdermalpatches). This drug is expensive. A patchapplied over the skin lasts three days,

but costs about 200 times more than anequivalent dose of morphine for thesame time.

Morphine is usually available in tabletform, but it is also there as a syrupthough it is not commercially available in India.

Are there risks in overdosing on opiods?There is the fear that overdosing couldlead to depression of breathing.However, this could be significant only incase of accidental or deliberate overdos-ing with large quantities. Even in thatcase, medical attention restores healthcompletely. In my 25 years in palliativecare, I have come across only threeinstances where oral morphine causeddepression of breathing.

When I talk about overdose, I amtalking about somebody consumingmore than a week’s supply of morphineall at one time. Two or three tabletsmore than the usual are unlikely tocause any significant side-effectsexcept possibly sleepiness and possiblymild delirium which is completelyreversible.

Board says that about 92 percent of theworld’s morphine is consumed by only 17percent of the world population, namelythose living in the US, Canada, WesternEurope, Australia, and New Zealand.

In the US, the use of painkillers has, infact, reached epidemic proportions withmany patients hooked to them. Centers forDisease Control and Prevention have evencautioned about prescribing opioids to non-cancer patients. US doctors also check data-bases to ensure that patients have not alreadybeen prescribed opioids elsewhere.

As for the developing world, most of itspoor people simply learn to live with the paindue. Ukraine, for example, allows patients totake home only a 15-day supply of morphine.In Russia, access to morphine is riddled witha lot of paperwork. In Armenia, cancerpatients have to make numerous rounds tooncologists and expert committees beforesome morphine is given to them. In

HEALING TOUCHDr Amrita from Pallium India on a home visit in Poovar, a suburb of Thiruvananthapuram

Tom Price


IL


Nigeria, said The Economist, while mor-phine started being imported from 2012,pharmacists from hospitals have to physical-ly travel through its bad roads to Lagos, itscapital. Colombia, on the other hand, pro-duces its own opioid painkillers, but hereagain the problem is of procuring them,especially for those from rural areas. Nepal,on the other hand, didn’t use 50 percent ofits supply of morphine tablets due to the fearof addiction. But when it can ease mind-numbing pain, it seems inhumane not togive it to such patients.

This is the principle of balance—while wehave a duty to curb the abuse of these drugs,we also have a duty to provide it for thosewho need them desperately, said Dr MRRajagopal, chairman, Pallium India, a pal-liative care trust.

JAIL TERMBut one reason for the morbid fear of keep-ing or prescribing these opioids in India isstringent punishment, leading to doctorsand hospitals having a hands-off approach.The amended law has not done away withthe mandatory imprisonment of 10 years.Experts say this is a grossly unfair situation as even clerical errors can lead tothat situation.

On top of that, doctors are hardly givenany training in how to prescribe morphineor the correct doses to do so. It is essentialthat the fundamentals of pain managementand principles of palliative care be taught tomedical students and as advised by theWorld Health Assembly in 2014.

Morphine, incidentally, is extracted fromthe poppy plant’s latex. And ironically, Indianot only produces it but also exports it inhuge quantities for medical use in othercountries. Yet, against the 329 kg of mor-phine used presently, the requirement is saidto be more than 30,000 kg if everybody heregot access to pain relief, said Dr Rajagopal.

Kerala, incidentally, has a good mechanismin palliative care with about 200 NGOs work-ing even in small towns and villages so that thelocal community will take responsibility to lookafter the needy there. In addition, based on aproposal submitted by Pallium India in 2005,Kerala declared a palliative care policy in 2008.A growing number of government hospitals ishelping out now.

So even as the business of living anddying goes on in a matter-of-fact way inIndia, some institutions are making a differ-ence and spreading some cheer.

* Name changed to protect identity

TAKE CAREYoung doctors dotheir bit to spread

awareness onWorld Cancer Day

One reason forthe morbid fear

of keeping or prescribing

opioids is the stringent

punishment of 10 years, leading

to doctors andhospitals having

a hands-offapproach.

68 July 15, 2016

UNI

—Compiled by Shailaja Paramathma

Case closes after 52 years in MississippiThe case of the killing of three

civil rights workers, which waslater made into the movie,Mississippi Burning, has beenclosed after 52 years. In 1964,the killings of James Earl Chaney,Andrew Goodman and MichaelSchwerner in Neshoba County,Mississippi, sparked outrage andtriggered the passage of the

1964 Civil Rights Act. In 2006, theFBI re-examined the case, whichis a part of over 125 unsolvedcases from the civil rights era,most of which have not resultedin prosecution. Attorney-generalJim Hood said: “…there are noindividuals that are living nowthat we can make a case on atthis point.”

INTERNATIONAL BRIEFS

In a landmark case, Chinese prose-cutors have successfully sued a

county environmental agency forinadequately punishing a sewagefirm that produced dye withoutappropriate safeguards. It is the firstenvironmental case of its kindagainst a government department.The company in question is

Qingshun Chemical TechnologyCompany and The SupremePeople’s Procuratorate in China saidprosecutors had successfully provedthat an environmental protectiondepartment in Shandong provincehad committed “illegal acts”. What isbeing hailed as a “war on pollution”by the Chinese government is a vowto abandon the decades’ old modelof growth when it endangers China’swater, skies and soil.


Environment takesprecedence in China

The United Nations has saidthat around 125,000 Muslim

Rohingya minority people inMyanmar are facing “crimesagainst humanity,” includingdenial of citizenship, forcedlabor and sexual violence. In2012, since fighting eruptedbetween Buddhists andMuslims, the communityremains displaced and faces

severe travel restrictions,besides living in squalidcamps. The UN human rightsoffice said it had found “a pat-tern of gross violations againstthe Rohingya ... (which) sug-gest a widespread or system-atic attack ... in turn giving riseto the possible commission ofcrimes against humanity ifestablished in a court of law.”

Human rights violations in Myanmar

Bahrain’s top Shia cleric, Sheik Isa

Qassim, was stripped of his nationality when the InteriorMinistry said that he hadplayed a key role in creatingan “extremist” sectarianatmosphere in Bahrain, asreported by Al Jazeera. He was accused of workingtowards creating a divide in the Bahraini society which

led to revoking of his citizenship. It was followedby Iran warning Bahrain that this act could “set (the) region on fire,” suggesting there could be armed resistance across the country. The US State Departmentsaid that it was “alarmed” bythe move, and that it was“unaware of any credible evi-dence” to support theremoval of the spiritualleader's citizenship.

Bahrain oustsShia cleric

The Judiciary asa Political Actor

BOOK EXCERPT/ Pakistan at the Crossroads

THE political landscape ofPakistan has always had aprominent place for its judi-ciary, and particularly theSupreme Court. The emer-gence of a judicially activecourt led by Chief Justice

Iftikhar Muhammad Chaudhry and then theexhilarating 2007-2009 Lawyers’ Movementseemed to mark a watershed in the SupremeCourt’s role, from junior partner to the militaryand bureaucracy in times of crisis, to an insti-tution autonomously exercising power. Indeed,

it can be argued that “had it not been for therevival of the rule of law and for a mechanismto enforce constitutional limits on power abuseby elected officials [in 2008-2013], democracywould not have survived in Pakistan.” (DaudMunir, “Why Democracy Has Survived”,Express Tribune, March 13, 2013). Thesedevelopments conjured up the image of a ruleof law directed by a judiciary of integrity andvision, supported by a large and vigorous seg-ment of civil society, the lawyers. The lawyershave since lost their heroic image, and theSupreme Court, after the retirement of Chief

A new book edited by Christophe Jeffrelot examines the challenges ourneighbor faces from within and outside. In this excerpt on the judiciary,Philip Oldenburg looks at the watershed Lawyers’ Movement

POTENT VOICEThe legal fraternity ofPakistan has been at

the forefront of politicalferment in the last

decade

70 July 15, 2016

The judicial crisis of 2007 was probably triggeredat least in part by Chief Justice Chaudhry’s use—or possible overuse—of the court’s suo motopowers on the government’s actions.

Justice Chaudhry in December 2013, has notasserted itself in the way it had. It has contin-ued to claim the political high ground, but it isunclear whether it would favor a “juristocratic”democracy.

Pakistan has what some label a “partial”democracy, or a “hybrid” regime, thatoscillates between an autocracy, when

the military is openly in power, and a flaweddemocracy, when relatively free and fair elec-tions occur, forcible suppression of dissentdeclines, but the military retains control oversignificant parts of the state. On the whole, inthe country’s history, the judiciary has playedthe role of a rubber-stamp institution legit-imizing military-bureaucratic rule.

Institutions of that hybrid regime such asParliament and political parties are weak.Policies and programs and laws are not con-ceived and written in Parliament and provin-cial legislative assemblies; rather, that has beendone mainly by a handful of insiders in theoffices of the ruling political party’s leader. Amajor exception, though, and perhaps a sign ofthe changing times, was the bargaining thatproduced a unanimous vote in favor of theEighteenth Amendment in 2010, which was

conducted across party lines, in committees.Most political parties have organizations thatare hardly active between elections or episodicstreet mobilizations; none have a leadershipselection process that avoids personalisticchoices. In recent decades, none of the majorpolitical leaders have demonstrated a taste orcapacity for statesmanship, as opposed to skillsof jockeying for power. Civil society also seemsbereft of either great leaders or organized socialmovements capable of changing the regime’scharacter. The media—first print and now tel-evision and the Internet—have been allowed todevelop significant independence and influ-ence in the last thirty years. Some parts of themedia have been able to put a small dent in thegovernment’s general unaccountability, and asuccession of flawed elections in the 1990s alsodid a bit.

In this context, the Lawyers’ Movement,which Sattar (Babar Sattar, advocate and

AT LOGGERHEADS(L-R) Pervez Musharraf’ssacking of Chief Justice ofPakistan Iftikhar MuhammadChaudhry in 2007 led to theLawyers’ Movement


ligence agencies, the Chaudhry Court had gonetoo far. Instead of the social control over dissi-dents and political opponents, the Court wasexpanding its power by taking up the popularcause of missing persons.” But, as Ghias notes,“the most significant threat to the Musharrafregime came not from what the Court haddone, but what it could potentially do in theOctober 2007 presidential election,” becausethe law required former government officials toleave their job two years before contesting. InGhias’s view, the rumors that the court wouldbe prepared to challenge the regime on thisground as well was decisive. It is important tonote that once the Chief Justice was restored tooffice, in July 2007, the court resumed its judi-cial activism on all these fronts. Some of thesesteps were far-reaching, direct challenges toMusharraf ’s regime:

Because of the pressure from the SupremeCourt, the regime was forced to acknowledgethe detention of more missing people and torelease them. In addition, Chaudhry orderedthe regime to release people who were notdeclared missing but who were being heldwithout trial. In order to avoid appearingbefore the Supreme Court, the regime evenreleased suspected “terrorists” who had beenarrested but never charged.

columnist) calls the “rule-of-law” movement,has brought a new possibility to the fore: thatthe initiative for establishing the rule of law ina revived democracy in Pakistan would comefrom the judiciary....

The judicial crisis of 2007 was probablytriggered at least in part by ChiefJustice Chaudhry’s use—or possible

overuse—of the court’s suo moto powers to ruleon the government’s actions. Particular casesdealt with the privatization of the PakistanSteel Mills Corporation and the effort to forcethe intelligence agencies to produce “missingpersons,” mainly from Baluchistan. Some of the“missing” persons had been turned over to theUnited States as part of Pakistan’s cooperationin the “war on terror,” so the court’s actionswere seen by Musharraf to be a challenge tothat part of his foreign policy. According toGhias (Shoaib A Ghias, legal expert), “byexpanding the reach of judicial power to intel-


The apex court gave a new lease of life toNawaz Sharif by deciding that he was

entitled to return to Pakistan, voiding his“agreement” to a 10-year period of exile.

72 July 15, 2016

Crucially, the court blocked the implemen-tation of the NRO (National ReconciliationOrdinance, which granted amnesty to politi-cians and others) that Musharraf had negotiat-ed with Benazir Bhutto after Chief JusticeChaudhry’s restoration (“in desperation”according to Ghias). As that negotiation was inprogress, the court decided that Nawaz Sharifwas entitled to return to Pakistan, voiding his“agreement” to a 10-year period of exile, anddeclared the government in contempt for put-ting him on an airplane to Saudi Arabia whenhe landed in Pakistan in September.

The court did not rule directly againstMusharraf on the issue of the validity of hiscandidacy for a second term as president in anelection held before his first term ended, takingadvantage of the old electoral college, formedby the legislatures elected in the rigged 2002election, rather than wait for a new electoralcollege to be formed after the new elections,then scheduled for December. The Lawyers’Movement began protesting the court’s inac-tion, even though it had placed a stay onannouncing the election results. The electionthat duly took place gave Musharraf his secondterm, but the chance that the court would ruleit invalid was very real. As Ghias notes, “it wasin this context that Musharraf imposed [whatwas in effect] martial law.”

The new court of Musharraf-appointedjudges lasted beyond the elections,because the Zardari-led PPP govern-

ment refused to honor its agreement with theopposition PML-N to restore the deposedjudges, who had been released in March 2008.So there was a gap in the court’s judicialactivism, and Zardari became the revivedLawyers’ Movement target. Although the PPPhad moved to impeach President Musharraf,succeeding in getting him to resign in August2008, its refusal to restore the judges forcedthe PML-N to withdraw from the coalitionsupporting the government. Zardari—nowpresident—and the PPP were able to secure asplit in the judges supporting Chaudhry.

Further demonstrations by the lawyers ulti-mately ended with the restoration of the ChiefJustice, but only once the replacement ChiefJustice reached retirement on March 16, 2009,more than a year after the election. The “PCO

(Provisional Constitution Order) judges” werefinally removed by Supreme Court order onJuly 31, 2009, as part of the court’s judgmentthat the declaration of emergency in November2007 was unconstitutional. Ayaz Amir writes:“What had restored their lordships was not thelawyers’ movement, something that hadalready lost steam. They were restored by thedynamics of the political process, even thepressure mounted by Nawaz Sharif being anaspect of the same process.”

The court soon resumed its activism,inquiring into day-to-day government andordering administrative remedies. It continuedto brandish a wide range of its suo moto initia-tives, holding hearings on the violence in

HISTORICROLE(Above) The theory of ZulfiqarAli Bhutto’s “judicial murder”still holds currency

(Left) There wasemphasis onshariat courtsduring theregime of Zia-ul-Haq


Karachi, in August–September 2011, for exam-ple, and investigating the so-called Memogatecrisis in early 2012. The court did not hesitateto intervene when it found fault in the arrange-ments for the May 2013 elections.

The court has also actively pushed for judi-cial reform more generally, building on somewell-funded initiatives of the previous decade,which in turn drew on the work of judicialcommissions in the past. A series of judicialconferences—beginning with the InternationalJudicial Conference on the fiftieth anniversaryof the Supreme Court in August 2006, fol-lowed by four National Judicial Conferencesbetween 2007 and 2011, and then internation-al ones in 2012, 2013, and 2014—featuredmajor Pakistani and foreign experts, with thepresentation of papers, speeches, and discus-sions leading to recommendations for reform.The Law & Justice Commission of Pakistanproduced a formal judicial policy in 2009.Although “judicial reform” would seem to be anobvious positive step, it is, in fact, problematic.

The official idea, supported in the lastdecade by large infusions of aid from the Asian

Development Bank and others, has been toimprove the efficiency of the courts, throughbetter infrastructure, better training, andincreased staffing, with improvement meas-ured in the reduction of the enormous backlogof pending cases. Other aspects of the system,including improved legal education, have notbeen touched. Although the superior judiciaryhas reason to see itself as highly qualified, thesame is probably not true of the lower courts.Ali Dayan Hasan, writing about the Aasia Bibicase, notes in passing:

It is a sobering thought that, in contrast tothe two-year training programme offered tocivil servants, district judges receive barely afortnight of orientation. These judges aremeant to dispense justice without any trainingin judicial ethics and conduct, interpretationand application of the law, or even the basics ofjudgment writing....

The view from Islamabad, however, is quiterosy:

In February 2013, the National JudicialPolicy Making Committee observed that afterapplication of National Judicial Policy, the dis-trict judiciary has decided millions of casesincluding 95% of Old cases [cases institutedbefore 31 December 2008]. This performanceof judiciary has enhanced the confidence ofgeneral public in judiciary as well as in the for-mal justice system. The Committee observedthat the results of Policy are quite encouraging,the Courts have by and large achieved the tar-

FLAWED ATTITUDEThe legal fraternity’

support for the killer ofPunjab’s liberal

governor Salman Taseerand their diatribe against

Aasia Bibi, convicted in blasphemy case, reveal

their fundamentalistmindset

It remains unclear whether the existing formal legal system is the problem or thesolution, when it comes to establishing a

just political and social order.


74 July 15, 2016

IL

gets and the shortcoming, if any, is primarily onaccount of persistent shortage of requirednumber of judges and deficient infrastructure.

But others see “judicial reform” as followingfrom the empowerment of the citizenry, both atthe grassroots level and in Parliament.... Yetothers would see a “reform” as removing or atleast reducing the power of the parallel Islamiclaw court system that was inserted into theConstitution by Zia ul Haq’s military regime.The not insignificant constituency for that sys-tem, however, might see a “reform” as indicat-ing the fulfillment of the promise of makingPakistan fully “Islamic,” and thus giving theshariat court system more power than it nowhas. The increase in judicial activism, includ-ing, in particular, the emergence of publicinterest litigation in the mid-198os, and withinthat the now routine use of suo moto powers, isseen by some as the essence of reform but byothers as the emergence of a new antidemocra-tic claim on political power. It thus remainsunclear whether the existing formal legal sys-tem... are the problem or the solution, when itcomes to establishing a just political and socialorder. After all, as (Osama) Siddique argues,“The pro-status-quo stance can and doesindeed manifest in at times resistance and hos-tility to not just reforms that make the legal

system simpler, transparent and more intelligi-ble to the layperson, but also to any reformsthat promote ideas of and mechanisms for pro-fessional accountability of judges and lawyers.”

The Supreme Court has made use of itssuo moto powers since at least 1990, todeal with a wide range of issues, from

the famous Mukhtaran Mai rape case, to thecutting down of trees along a canal in Lahore.In the use of suo moto jurisdiction, the superiorcourts “[free] themselves entirely from liverequirements of ‘petitioners’ or ‘aggrieved per-sons’ and . . . are not bound by any procedurallimitations. The objective to provide justice toall becomes the driving force of the proceed-ings.” Most significant, perhaps, is that thejudges adopt an inquisitorial rather than anadversarial method, summoning governmentofficers and others to court to answer thejudges’ questions. The Chaudhry court in itsuse of suo moto powers was thus not excep-tional; what may have changed was the vastlyincreased activity of the electronic media...which seemingly has increased the speed withwhich those powers are called into play. Somehave criticized the extent to which suo motointerventions have occurred, including theimplication that the court—whose predecessor,PPP supporters feel, was guilty of the “judicialmurder” of Zulifqar Ali Bhutto in 1979—ismotivated as much by political antagonism asby a sense of justice. Although these suo motocases do grab attention, there are not thatmany of them: in the 2008-2012 period, therewere eighty-six, with thirty-three pending as ofMarch 2o13.

Still, the critics argue, the court is in effectsending a signal that filing a case in the normalway and waiting in the queue for it to be decid-ed is a second-best way of getting justice.Conversely, there are clearly some suo motocases that have been taken up as a way for thecourt to consider much larger issues thanresolving the immediate problem. But becausethe entire process of going up the ladder of courts, giving time for arguments on bothsides of the issue to mature, is short-circuitedby the direct access to the Supreme Court..., thelong-term effects of the court’s decisions are more likely to be uncertain and perhapsunfortunate.

Pakistan at theCrossroads:DomesticDynamics andExternalPressures

Edited by ChristopheJaffrelotPublished by VintageBooks, Random HouseIndiaPages: 358; price: `699

TIMELY INTERVENTIONThe SupremeCourt made useof its suo motopowers to dispense justicein the MukhtaranMai rape case


Troubled NIGEL FARAGE, theleader of the far-rightUK IndependenceParty (UKIP) jubilant-ly announced on June24 that the day wouldgo down in British his-

tory as their Independence Day. Indepen-dence from the European Union, an organi-zation that Britain had willingly joined justover four decades ago, and which had a bighand in making the UK the fifth largesteconomy in the world despite an economicdownturn around the globe.

Listening to the murmurings from theelectorate against the EU, Prime MinisterDavid Cameron had made the foolish mis-take of making a personal promise that ifelected for a second term, he would hold areferendum in the country to decide onBritain’s future in Europe. Cameron won asecond term and made good his promise to the detriment of his own career and hiscountry’s future.

Costing £142 million of taxpayer’s money,the referendum threw up deep divisions inBritain—pitting town against country; youngagainst old; rich against poor and mostimportantly, those who considered them-selves indigenous English against all others.

LISBON TREATYWhile all the opinion polls kept talking of aclose contest, none believed that the resultwould be in favor of Leave, not even theLeave campaigners. Apart from forcingCameron to resign from the prime minister-ship, the shocking Brexit vote has opened upa Pandora’s Box of legal tangles that even thevictors do not know what to do with.

Article 50 of the EU’s Lisbon Treaty pro-vides an exit mechanism for any memberstate which wishes to leave, but there is noprecedence as no country so far had everexpressed a wish to leave the Union. On thecontrary, there have always been countries

GLOBAL TRENDS/ Brexit’s Legal Loopholes

While UK’s referendum to leave the EU hasshocked many, what remains is a load of legaltangles before fresh legislations are brought in

to create a new relationship with EuropeBy Sajeda Momin in London

UNEXPECTED RESULTNigel Farage, leader of the UnitedKingdom Independence Party, in a jubilant mood after victory for the“Leave” camp in the referendum

TIMES

76 July 15, 2016

Photos: UNI

clamoring to join. The EU began with agroup of six countries, but today has 28members, including Britain.

According to Article 50, withdrawal wou-ld begin with a formal notification lodgedwith the European Council, which includesall 28 EU heads of state or government, theCouncil’s president, Donald Tusk and thepresident of the European Commission,Jean-Claude Juncker. But once that is done,the process cannot be stopped and the leav-ing state ceases to be an EU member withintwo years of the notification.

Leaders of the Brexit campaign are so sur-prised by their unexpected victory that des-pite an angry Juncker demanding a formalnotification right away virtually saying “gonow”, they are insisting that they will taketheir time to invoke Article 50. The decisionfor delaying the notification has more to dowith the fear of what will happen next ratherthan thinking over their decision and how toimplement it. Throughout the campaign,Brexiters were asked about their plan ofaction if they happened to win and nonecould give a reply. Once the two-year stop-watch has started ticking, there are no provi-sions allowing Britain to stop the process bywithdrawing its notification.

If Britain wishes to ignore the Article 50process, it could do so by simply repealing itsEuropean Communities Act 1972. However,this would be a breach of the UK’s treaty obli-gations under international law. It would alsoanger the Europeans and make it impossiblefor Britain to strike any preferential tradeagreements with the EU. Hence, it seemsvery likely that Britain will follow the correctprocess if it finally does decide to leave.

CAMERON’S DECISIONCameron, who put his neck on the line overthe referendum only to have it chopped off,resigned with hours of the results, and refus-es to take on the burden of navigating Britainout of the EU. He has promised that therewill be a new prime minister by the

time the Conservative Party heads off for itsannual conference in October, which will dothe needful. While the government acceptsthat it is their “democratic duty to give effectto the electorate’s decision”, there is nothinglegally binding in the verdict of the referen-dum. Until now, campaigners on both sideswere claiming that whatever the electoratedecided in the referendum was a done deal,post-referendum both sides are raising ques-tions as to how they will implement it acc-ording to British laws.

Britain’s Referendum Act allows six weeksfor anyone challenging the result to bring aclaim for judicial review. Considering the factthat Scotland and Northern Ireland, whichboth voted overwhelmingly to remain in theEU, are already up in arms at being

Millions havesigned anonline petitiondemanding asecond referendum to “right the wrong” carried out on June 23.

MISCALCULATIONDavid Cameron took ahuge risk in promising areferendum to the Britishelectorate when he wasseeking a second term asprime minister

dragged out against their will and are talkingof breaking up the UK, there are bound to besome challenges to the decision. Many inLondon too, which voted to stay in, aredemanding that it be declared an independ-ent international city that is aligned with EUrather than the rest of England—a highlyunlikely possibility. Millions have signed anonline petition demanding a second referen-dum to “right the wrong” carried out on June23. While the petition has no legal status,parliament has to take notice and discuss it ifit has more than one lakh signatures which italready does.

MASSIVE TASKEven if no challenges are lodged, there is aconstitutional requirement that the issue isdebated in both houses of parliament. In fact,

the new prime minister will have the oneroustask of guiding the result through parlia-ment. Supporters of Brexit may argue thatthe referendum result is sufficient, but par-liament did not surrender its sovereignty tothe electorate when it passed the EUReferendum Act 2015 allowing the referen-dum. The Act lays out no terms about theconsequences of a referendum vote. How-ever, it is suggested that there would have tobe at least a House of Commons majority infavor of Brexit before a notification is lodged.What if the government cannot get a majori-ty, a very likely possibility as most MPs acrossparty lines were in favor of Remain. It couldprecipitate an early general election and anew government under a new prime ministerwho would not be under any political obliga-tion to implement the referendum result.

If, eventually, the UK does go throughwith Brexit, then there are a whole load ofmore legal tangles that it has to first extricateitself from and then put in fresh legislationsto create a new relationship with the EU, butthis time, from the outside.

The Leave campaigners kept poundinghome the argument to “take back control”

DIVERGENT VISIONS(L-R) Mayor of London

Sadiq Khan supports theRemain campaign at

Roehampton University inLondon on May 30;

Leave EU supporters celebrate the Brexit result

in Sunderland

“Disentangling the UK from the substantialbody of EU legislation which applies in theUK is a massive task which will take many

years to complete.” —Judith Aldersey-Williams, a senior UK lawyer

78 July 15, 2016

GLOBAL TRENDS/ Brexit’s Legal Loopholes

IL

and “make our own laws”. Hence, they wouldlike to take immediate steps to reduce theinfluence of the European Court of Justice.However it is not so simple. “Disentanglingthe UK from the substantial body of EU legislation which applies in the UK is a mas-sive task which will take many years to com-plete,” explained Judith Aldersey-Williams, asenior lawyer.

RESTRICTING MOVEMENTThere is also the issue of UK nationals cur-rently living and working in other EU coun-tries. There are currently three lakh Britishnationals living in Spain alone—what hap-pens to their position? “Free movement ofpeople”, a regulation which has allowed lakhsof Europeans to migrate to the UK, andwhich is the main bugbear of the Leave cam-paign, will be curtailed on both sides. If UKstops migration from Europe, it is also verylikely that Europe will hit back by saying noto British migrants. It may even throw outthose British nationals who are already livingin Europe or insist that they leave and returnonly on a visa.

Once Britain is out of the EU, it will have

to strike a new treaty which will replace theold—particularly one which will deal withtrade. Currently, the UK has access to a mar-ket consisting of more than 500 million peo-ple for its goods and services. It is bound towant to find some way to hold on to this, per-haps by negotiating for preferential marketaccess. However, Europe will want to extractits pound of flesh and may demand that theUK in return concede on various immigra-tion policies, including “free movement ofpeople”, concessions the Leave camp areagainst, bringing us back a full circle.

The Brexit referendum has done manythings—divide the country, possibly facilitat-ed the break-up of the UK, brought racistscentre-stage and taken British politics onestep further to the right. But it has notachieved what it set out to do—take Britainout of the EU. For that to happen, there arestill many legal imponderables that the coun-try has to clear before it can press the buttonfor leaving.

SHAKEN BLOCKPresident of EuropeanCouncil Donald Tusk andthe President ofEuropean CommissionJean-Claude Junckermeeting Prime MinisterNarendra Modi at the EU-INDIA Summit inBrussels in March end.Brexit seemed implausible then


Throughout the campaign leading up tothe referendum, Brexiters were askedabout their plan of action if they happenedto win and none could give a reply.

VISIT Mohamedpur andMirpur in old Dhaka andone will come across alarge number ofPakistani Biharis incrowded camps there.Living in unhygienic

conditions, filth and squalor, families ofseven to ten members can be seen sharing asmall eight-by-ten feet space.

These Biharis were stranded inBangladesh ever since its independence in1971. Numbering more than 5,00,000, theydon’t have a clearly defined identity and havebeen eking out an existence in 66 camps inseveral areas of Bangladesh for more thanfour decades. Although they are residing in“refugee camps”, the UNHCR does not recog-nize them as such. They are, therefore,deprived of the benefits and opportunitiesextended to other refugees.

WHO IS A REFUGEE?According to the Article 6(A) (1) of theStatute of UNHCR and Article 1(A) (2) of theRefugee Convention 1951, a “refugee” is a person who belongs to the following three criteria:

(a) the person is outside the country of hisnationality, or in the case of stateless persons,outside the country of habitual residence;

Despite the Supreme Court of Bangladesh confirming that Biharis there were its

citizens, they live in deplorable conditions due to their legal status not being clear

By Prakash Bhandari in Dhaka

80 July 15, 2016

Identity Crisis!(b) the person lacks natural protection; (c) the person fears persecution.All these three criteria are applicable to

these Biharis. However, according to the ces-sation clauses of the 1951 Convention and theUNHCR Statutes of 1950, a person shall stopbeing a refugee if, among others: “He/she has voluntarily re-established him/her self in the country which he/she left or outside which he/she remained owing to fearof persecution.”

The case of Bihari Muslims comes underthis clause as they voluntarily migrated toEast Pakistan in 1947 from India and inPakistan they enjoyed protection by the stateand were full-fledged citizens after 1951,according to Section 3(d) of the PakistanCitizenship Act.

ETHNIC DIVIDEAbdul Jabbar, the leader of the Bihari com-munity, said: “The Bihari community inBangladesh has the minority characteristicsoutlined in the definitions provided earlier.We are ethnically different as we speak a dif-ferent language and maintain Bihari culturalvalues despite practicing Islam like theBengali majority. We have been given a pecu-liar status which is ‘artificial’, making us nei-ther refugees nor minorities. It is artificialbecause it is a product of the historical legacyof 1947 and of a political context of 1971. Thismakes us live in artificially designated areas(camps) under an international agreement.Yet, we are literally a ‘minority’ because weare insignificant in number. Thus, we aredeprived of both citizenship privileges as wellas refugee benefits.”

The unresolved status of Biharis, healleged, was the result of deliberate procras-tination and political indecision on the part

DIPLOMACY/ Bangladesh Biharis

of both Bangladesh and Pakistan. “Wemigrated to East Pakistan and a large num-ber of Urdu-speaking people from Bihar,Uttar Pradesh, West Bengal and some otherstates in India crossed over to Karachi,Lahore and other places in Pakistan between 1947 and 1971. But those who could not go and got struck after the 1971 lib-eration war are now forced to live here as‘stranded Pakistanis’.”

The movement of these Biharis to EastPakistan was due to a desire to escape thecommunal bloodshed after Partition and topreserve their Islamic way of life. They alsosaw hijrat (migration) as an escape from thepossibility of living in Hindu-majority India.To their disappointment, when they arrivedin East Pakistan, leaving behind their posses-sions, familiar environment and professions,they felt alienated. It wasn’t easy to adjust toa new society in terms of language, customs,traditions and culture.

The Bihari community never assimilatedwith the local people and maintained analliance with West Pakistani or present-dayPakistan against the interests of theBengalis. They supported the adoption ofUrdu as the official language in EastPakistan, where the language of the majoritywas Bengali and opposed their languagemovement in 1952. They also supported the issues of United Pakistan in the national and provincial elections in 1970.They were mainly employed in the industrialsector, small business, trade and commerce,unlike Bengalis who were mainly in the agri-cultural sector.

BIHARI ROLEIt is alleged that these Biharis opposed theindependence of Bangladesh and collaborat-ed with the Pakistani government in 1971 inthe killing of Bengalis. This led them to bearenormous social, economic and political


These Bihariswere stranded in Bangladeshever since its independence in1971. Numberingover 500,000,they have beeneking out anexistence in 66camps acrossthe country.

NOWHERE TO GOA Bihari family at a camp inDhaka, Bangladesh

Getty Images

consequences immediately after the inde-pendence of Bangladesh. Dissidents in EastPakistan targeted the Bihari community andin early March 1971, 300 of them wereslaughtered by rioting Bengali mobs inChittagong alone.

The present conditions of these Biharisleave a lot to be desired. There are about45,000 people living in MohammadpurGeneva Camp, the biggest camp. Basic facili-ties are poor and there are just two-threemedical clinics to cater to the needs of abouta lakh.

Khalid Hussain, an activist, said: “The liv-ing environment of the camps is deplorable.They are unhealthy, dirty and damp. Campauthorities are neither able nor serious aboutmaintaining healthy sanitation. The drainagesystem is very poor, causing waterloggingeasily. Diarrhea and dengue are commonhere.” Moreover, there is acute scarcity of safedrinking water in every camp. They also havefew educational facilities. And even if thereare schools, they can’t afford to send theirchildren there.

The legal status of these Biharis has oftencome up in courts. In 2003, in the case ofAbid Khan and Others vs Government ofBangladesh and Others, a division bench ofthe High Court held that the 10 Urdu-speak-ing petitioners, born both before and after

1971, were Bangladeshi nationals pursuant tothe Citizenship Act, 1951 and the BangladeshCitizenship (Temporary Provisions) Order,1972. It directed the government to registerthem as voters. The court further stated that “the mere fact that a person opts tomigrate to another country cannot take awayhis citizenship”.

SUPREME COURT JUDGMENTIn 2008, the Supreme Court of Bangladeshconfirmed that Biharis are citizens ofBangladesh, in the landmark decision ofMohammad Sadaqat Khan and Others vsChief Election Commissioner. It directed theElection Commission to enroll the petition-ers and give them a national identity card.However, the Bangladesh government hasnot honored this decision in letter and spirit.

Meanwhile, economic insecurity hasplagued these Biharis. As the economy ofBangladesh is basically agro-based, landownership is very important. But the Biharishave no ownership of fixed properties such asland and ponds and opportunities of gettingemployed in agricultural activities are limit-ed for those in these camps. Most areengaged in producing Banarasi sarees.

In addition, internal squabbles and fac-tionalism have led to rifts in the community.The older generation wants to return toPakistan and tries to persuade the communi-ty to support their view. However, after theinitial repatriation, Pakistan was reluctant totake back the large number of strandedBiharis. In June 1974, during the Mujib-Bhutto talks in Bangladesh, President Sheikh Mujibur Rahman of Bangladeshrequested Pakistan President Zulfikar AliBhutto to take back all stranded people whohad opted to return to Pakistan. But Bhuttorefused saying: “I have not come toBangladesh with a blank cheque.” Mujib’svarious diplomatic initiatives came to naughtand his assassination in 1975 further sloweddown repatriation.

These Biharis, meanwhile, continue toremain as an “artificial minority”. Evidently,the domestic compulsions of bothBangladesh and Pakistan are hinderingeither their naturalization in Bangladesh ortheir repatriation to Pakistan.

82 July 15, 2016

IL

In June 1974,Bangladesh

president SheikhMujibur Rahman

requested hisPakistani

counterpartZulfikar Ali Bhutto

to take back allstranded peoplewho had opted

to return to Pakistan.

Bhutto refused.

DIPLOMACY/ Bangladesh Biharis

.

News & Politics

India Legal 15 July 2016