India Legal 30 November 2016

NDIA EGAL L November 30, 2016 `100

www.indialegalonline.com

IThe Second American RevolutionDoes the US political system have enough checks and balances to prevent the Trump presidency from misuse of executive power? by Kenneth Tiven, former vice-president, CNN

The Smog Scourge: Can we outlaw pollution?

NovembN

THE DEMONETIZATIONREALITY SHOW

INDERJIT BADHWAR

relied on the web. Now the net is a dangerousplace. You have to navigate your way through aweb of lies and deception, and journalists can easily be misled by plagiarized material thinkingthey are looking at original stuff. Remember,always, that the net produced America’s viralPresident—Trump.

But not in this case. In surfing around, I foundand read with interest the most credible and voice-loaded chain mail on this subject which fulfilledthe need of what I was looking for without havingto run around anymore. It was the ghost of theIndia Today of yore speaking to readers as it usedto do. This specter of wisdom appeared in the por-tal EX-IT (an acronym for ex-(former) IndiaToday, a closed Facebook chatroom of reportersand editors who once worked at the magazinewhich was said to have “quickened the pulse” a daybefore each issue hit the newsstands. It is web-mastered by the fiery-eyed Sardar Harpal Singh,who worked with me as India Today’s news coordi-nator and later became Day & Night TV’s editor.He guards the contents of his chatroom with thesame religious fervor with which he protectedIndia Today’s newslist.

What follows is an online reality web-showwhich tells the story. The characters are real. Allthe action takes place in Act One Scene One. Thepeople are all real. So sit back and enjoy:

HARPAL SINGH: Don’t know how all of you, mylearned friends, are reacting to Prime MinisterNarendra Modi’s drastic decision to declare invalidthe Rupees five hundred and one thousand notesfrom midnight tonight, to curb black money & ter-ror funding. Before I share my thoughts with

LETTER FROM THE EDITOR

Y colleague Dilip Bobb, now seniormanaging editor of India Legal, and Ihad just wound up a popular talkshow on APN news channel, our sisterconcern, on the day that Narendra

Modi conducted what his spin doctors describedas twin surgical strikes on black money and terrorfunding. In one fell swoop, shrouded in secrecymatching the Pokhran nuclear test, paper legaltender became rubbish overnight as `500 and`1,000 notes, with which most cash transactionsare conducted across India, were demonetized.

In addition to the heated TV discussion inwhich senior chartered accountants, journalists, aformer chief justice and Supreme Court lawyersparticipated, Dilip thought that this huge nationalstory, suddenly competing for headlines with theDonald Trump victory, deserved healthy space inthe magazine as well. We were in the process ofputting the issue to bed with Donald Trump andair pollution already on the cover. So we decided toenshrine the editorial importance of the demone-tization story in the leader.

It needed research, voices, legal background,opinion, weight, a point of view, the right mix ofirreverence and rage, verisimilitude, balance—theeditorial alchemy which bubbled with zing, stingand eyeball-grabbing urgency, once the gold stan-dard of magazine writing pioneered decades agoby India Today. I mention this magazine becauseboth Dilip and I once edited it, a large part of theIndia Legal–APN senior staff are its alumni, andbecause it will feature, albeit indirectly, in the larg-er part of this editorial which is to follow.

But, briefly, back to my story. In researching thestory, I read the papers, talked to experts and also

M

3INDIA LEGAL November 30, 2016

Committee on Economic Affairs? If yes, then whyhas it not been disclosed to the citizens? If not,then why not? There are other questions whicharise: Was it not necessary to take the Parliamentinto confidence on such a drastic step? Which lawof the constitution has empowered the centralGovernment to go ahead with this decision?

I am absolutely sure that our legal luminarieswill rush to the Supreme Court first thing in themorning with these and other legal challenges tothis decision. And it would be interesting to seehow the top court deals with these.

Meantime, I would love to hear what you think.

ROHIT BANSAL: Appreciate your courage inconveying the sentiments of us, honest taxpay-ers. To criticise this madness means inviting thewrath of people who support everything the gov-ernment does.

MANISH KUMAR: Boss, let’s not take pressureon this issue and celebrate the plight of those whowere hoarding black money all these days.

VIJAY JODHA: In India we have a long traditionof finding quickfix solutions for pressing issues (inthis case black money, but could be dowry deaths,atrocities on dalits, terrorism etc.) and ramming

you, I must make this disclosure: I do not have anyunaccounted money. I am a salaried professionaland I have recently received a scintillating com-mendation from the CBDT for continuously filingmy I-T returns on time.

On the face of it, it looks like a bold move on thepart of the central government which will crippleall those who have wads of currency stashed awayin their cupboards and elsewhere and who do notpay their taxes. But as a regular tax-payer, whyshould I go through the inconvenience of not hav-ing any liquidity for two days—and then restrictedliquidity—just because the central Governmenthasn’t thought things through to save me the pain?

Also, why should I be put through the processof returning/ exchanging whatever currency inthese two denominations I have through mybankers because it is no longer valid after two daysof forced bank holiday?

After all, what is the legality of the centralGovernment’s move to render currency of twodenominations invalid when each note carries asolemn legal assurance under the RBI Governor’ssignatures: “I promise to pay the bearer the sum offive hundred rupees” — a pledge which is “guaran-teed by the central government”?

Also, we follow the Cabinet system of Govern-ment. Was this proposal put before the Cabinet


4 November 30, 2016

PRECIOUS TIME LOST

(Left and facingpage) The commonpeople had to brave

long queues atbanks following the

demonetizationmove

“In a parlia-mentary

democracy,the prime

minister is thehead of the

executive whois duty-bound

to consult the Cabinet

and theParliament.His powers

are notsupreme.”

—Harpal Singh

UNI

tomers before Tuesday, the 15th. Once they do, theinvalid currency can be deposited in one’s ownaccount after showing an ID proof. The thing isthat the supply of money should have beenensured before creating a demand. The banksshould have been kept open beyond normal hoursand there shouldn’t have been a break of two dayswhich has got extended to five days because of theweekend and Guru Nanak birthday (this was thesituation at the time of this chat). I have alreadymentioned above how the effects could have beenpartially mitigated.

FARAHEEM MOHD: It may be a good step... butexecuted in a very poor management. They shouldhave liquidated `100 notes well in advance thr-ough ATMs. I am upset as work is suffering and weare losing our hard-earned money... does it notneed approval from parliament?Power of government to devalue currency: �The Government of India u/s 24(1) & 24(2) ofReserve Bank of India Act of 1934 may introducenew currency up to denominations of 10k and maydevalue the currency of any value, and for any suchdevaluation government shall publish such orderin its official gazette. �Section 24 (of the Act). Denominations of notes.

(1) Subject to the provisions of sub-section

them down people’s throats regardless of howpoorly they may be drafted or going against someother provision of our constitution.

NAYAN PADRAI: It is a big move and sacrificesare needed by all. They could not have publiclydeclared it earlier.

HARPAL SINGH: Nayan, there is no provision forsuch sacrifices in the Indian constitution. Theissue is serious inconvenience to citizens and legal-ity of the decision, not the intent to curb blackmoney. In a parliamentary democracy, the primeminister is the head of the executive who is duty-bound to consult the Cabinet and the Parliament.His powers are not supreme; they are deliberatelyfettered and subordinated to prevent absoluteauthority of an individual. I know the move couldnot have been declared publicly earlier but thepain to the law-abiding citizen should have beenanticipated and addressed. Also, I still think it isan arbitrary and illegal decision. The solemnpledge on each currency note cannot be suspendedeven for a minute.

These notes—`1,000 and `500—are alreadyinvalid since midnight last night. The ATMs havegone out of service for two days starting midnightlast night. The banks won’t entertain any cus-


“I shudder tothink what people inlocal bazaarsand residentsof small towns will gothrough.”—Ranjit Mongia

UNI

“It is a bigmove and

sacrifices areneeded by

all. Theycould not

have publiclydeclared it

earlier.”—Nayan Padrai

RANJIT MONGIA: Exactly my thoughts HarpalSingh. I shudder to think what people in localbazaars and residents of small towns will gothrough. What about lower middle class, the elder-ly, the infirm, how will they get their currencyexchanged?

SONALI GHOSH: Why not clean up the dirtyblack air first before a late night attempt to cleanup black money. And don’t think 2000 rupee notecan’t be counterfeited! I’m sure a 2000 rupee notein the absence of 500 and 1000 rupee notes is abigger invitation. Also, why not leave poor workingclass people out of it? I mean people who arelaborers, domestic staff, who don’t have bankaccounts and are below the tax paying bracket…they could be allowed to keep and use their cash atleast. This does not feel thought out or makessense, I’m afraid.

INDERJIT BADHWAR: Guys, if you have TataSky, pls watch a very spirited and informed discus-sion on Modi’s demonetization on my TV ChannelAPN 542) at 10.30 pm. (Also on DD Direct, Airtel,Videocon, Hathway). Veteran Dilip Bobb is also on it.

Here’s link to my APN news TV channel (DilipBobb and me) on this vital, demonetization issue.https://www.youtube.com/watch?v=V05Fi6Na2Q0&feature=youtu.be

(2), bank notes shall be of the denominational val-ues of two rupees, five rupees, ten rupees, twentyrupees, fifty rupees, one hundred rupees, five hun-dred rupees, one thousand rupees, five thousandrupees and ten thousand rupees or of such otherdenominational values, not exceeding ten thou-sand rupees, as the Central Government may, onthe recommendation of the Central Board, specifyin this behalf.

(2) The Central Government may, on the rec-ommendation of the Central Board, direct thenon-issue or the discontinuance of issue of banknotes of such denominational values as it mayspecify in this behalf.

�Section 26(2) of the Reserve Bank of India Actempowers the central government to declare banknotes as ceasing to be “legal tender”: -

26. Legal tender character of notes. (1) Subject to the provisions of sub-section (2),

every bank note shall be legal tender at any placein India in payment or on account for the amountexpressed therein, and shall be guaranteed by theCentral Government.

(2) On recommendation of the Central Boardthe Central Government may, by notification in theGazette of India, declare that, with effect fromsuch date as may be specified in the notification,any series of bank notes of any denomination shallcease to be legal tender save at such office oragency of the Bank and to such extent as may bespecified in the notification.

6 November 30, 2016


GUEST APPEARANCE?

Rahul Gandhi spotted at a bank

even as peoplewere jostling to

exchange the currency notes

[email protected]

Amarjeet Singh

NOVEMBER 30, 2016

Don of a New World OrderDonald Trump as US president has evoked worldwide apprehension. Former CNN vice-president Kenneth Tiven analyzes whether there are enough checks and balances to prevent misuse of power

18LEAD

The MP government has been forced to order a judicial probe into the killing ofeight SIMI undertrials by the police and could face a protracted legal battle

30A Jailhouse Rocks

8 November 30, 2016

STATES

With the apex court ruling in favor of Haryana in the contentious Satluj-YamunaLink case, parties are competing with each other to milk it for the Punjab polls

22Canal of ControversySUPREME COURT

Our men in uniform are locked in a crusade for pension parity ever since the incumbent government came to power promising to implement it in 100 days

24The Bullet-Less War DEFENSE

A Madras High Court directive to YouTube and Google to provide the IP addressof a user uploading defamatory content has rattled Tamil Nadu’s online activists

33Blow against Net Freedom

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VOLUME. X ISSUE. 6

Managing Editor (Web) Parsa Venkateshwar Rao Jr

Convergence Manager Mohul Ghosh

Senior Content Writer Punit Mishra(Web)

Technical Executive Sonu Kumar Sharma(Social Media)

Technical Executive Anubhav Tyagi

The Bombay High Court has pulled up Pune Police for tardy progressinto plaints of embezzlement of funds belonging to the mystic’s trusts

Quest for Osho’s Will 70

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

72Canadian writer and broadcaster Tarek Fatah explains why he thinksIndia should end the water treaty with its belligerent neighbor

“Cut All Water Ties with Pak”

Cover Design: ANTHONY LAWRENCECover Photo: UNI

PROBE

FACE-TO-FACE

Justice S Ravindra Bhat, who headed the first HC-level e-court,shares his experience regarding digitization of the legal profession

48“Reluctant to Accept Tech”INTERVIEW

POLLUTION


Surgical Strikes II?The jury is still out on whether the demonetization move by thegovernment to crack down on black money was a wise one

The battle between the LG and the Delhi CM has hit Kejriwal’s image.How will it affect AAP’s political fortunes?

Kejriwal’s Dented Image 38

46

66The law has brought women on par with men with regard to family prop-erty but discriminates against them when it comes to inheriting farmland

Law’s Agri Loophole

Britain’s High Court of Justice has demanded the June 23 referendumbe passed through parliament, delaying the country’s exit from the EU

Bumpy Road for BrexitGLOBAL TRENDS

76

Arnab Goswami’s surprise exit from Times Now will change the lives ofassorted camp followers, fans, studio guests, the BJP and myriad others

Goodbye, NewshourSATIRE

82

FOCUS

ROUNDTABLE

Delhi is the world's worst pollutedcity and the smog post Diwalihas highlighted the dangers.With the Supreme Court steppingin, can pollution be outlawed?

52Every Breath You Take

36Twenty-four years after the police branded four Punjab women forbeing pickpockets, a CBI court has let them off lightly

The Scarlet Letter

LEGAL EYE

Though arbitration is a most effective method of solving commercialdisputes, its potential has not yet been fully utilized in India

62A Long Way to Go

REGU

LARS

Ringside .................................................................... 10Quote-Unquote ......................................................... 11Courts........................................................................ 12National Briefs............... ............................................ 16International Briefs ....................................................75Wordly Wise .............................................................. 80Images........................................................................81

Going Up in SmokeDespite raising taxes and stringent laws, India's tobacco controlprogram has failed to curb the habit. What is the road ahead?

42SPOTLIGHT

I submit that an individual who breaks a law that conscience tells him is unjust, and who willinglyaccepts the penalty of imprisonment in order to arousethe conscience of the community over its injustice, is inreality expressing the highest respect for law.

—Martin Luther King Jr

VERDICT

10 November 30, 2016

Trainee CM ne itnakaam kiya hai, anub-

havi CM aur achchhakaam karenge (if the

trainee CM has doneso much work, an

experienced CM willdo much more).

—Kannauj MP and UP CMAkhilesh Yadav’s wife

Dimple Yadav, speaking toMail Today

QUOTE-UNQUOTE

I will forever be grateful to the media.Otherwise, who knew me? After

Independence if any politician hasreceived this kind of special attention, I

think I am the only one.—Prime Minister Narendra Modi, at the

Ramnath Goenka Awards function in Delhi

I have been subjected to sexual harassmentin the corridors of the Supreme Court. It is a

busy place and it is normal for people tobump into you. But, you know when it is

accidental and when it is deliberate. I had toexperience it, despite my seniority in the

profession and despite my age.— Senior lawyer Indira Jaising, in The Week

For the first time, we are not beingallowed to meet the families ofour soldiers. Kaisa Hindustanbanaya ja raha hai? (What sort ofa country are we creating)?—Congress Vice-President Rahul Gandhi,on being stopped from meeting the family

of veteran Subedar Ram Kishan Grewalwho committed suicide over OROP

I know how disappointed you feel,because I feel it, too. And so dotens of millions of Americans whoinvested their hopes and dreamsin this effort. This is painful, and itwill be for a long time.

—Hillary Clinton, at the ConcessionSpeech after losing the US Presidential

election

Certain politicians are making a hue and cryfor these terrorists but not lending a word ofsolace for the martyred jawans. I condemnsuch leaders and the dirty politics they aredoing. But for the government and the public, the nation and the state is foremostand I appeal everyone to stop playing dirty politics. Patriotism is important.

—Madhya Pradesh Chief Minister Shivraj SinghChouhan, following the killing of eight SIMI undertrials

who escaped from Bhopal jail, in FirstPost

You say a lot of nice things about journalistswhich makes us nervous. Mr RamnathGoenka sacked a journalist when he heardthe CM of a state tell him “aapka reporterbahut achha kaam kar raha hai” (yourreporter is doing good work).

—Raj Kamal Jha, chief editor, The Indian Express, addressing Prime Minister Narendra Modi at

the Ramnath Goenka Awards function


The LDF governmentin Kerala went back

to its 2007 position onallowing women toenter SabarimalaTemple in the state. It told the SupremeCourt that women aged between 10 and50 years mustn’t bedebarred from goinginside the temple.

The stand was dia-metrically opposite tothe erstwhile UPA government’s view-point that the age-oldtradition of restrictingwomen shouldn’t bedisturbed as it was “anintegral part of practic-ing religion”.

Interestingly, aftercoming to power thisyear, the LDF govern-

ment had suppor-ted the UDF’s stand in July.

The counsel for theTravancore Devas-wom Board stronglyopposed the govern-ment’s stand, contend-ing that the state gov-ernment couldn’t beallowed to do a flip-flopon the issue to suit itsinterests.

After taking intoaccount both the pleas,the court observed thatit will delve into allangles and even con-sider whether a five-judge constitutionalbench should take upthe issue.

It deferred the nexthearing to February 13,2017.

COURTS

Sabarimala issuestill in a deadlock

In a scathing observation, theSupreme Court recently pulled up

the Bombay High Court for failing toprovide in time copies of its verdictrelated to regularization of unautho-rized structures to the petitioner andthe other side. The Court’s reactioncame in during the last week ofOctober while it was hearing a pleathat had challenged the HighCourt’s judgment.

The Court took a serious notethat although the High Court haddelivered the judgment on August 8,

the hard copies were yet tobe delivered.

The counsel for the peti-tioner had drawn the cou-rt’s attention to the state ofaffairs when it could notabide by the apex court’sorder to produce a copy.

The apex court ordered thatthe chief justice of the HighCourt look into the matter and“see if something can be done”.However, it allowed the petitioner tofile the Special leave Petition.


MLA’s election quashedThe election of a Congress

MLA, Mairembam Prithviraj,was declared null and void bythe Supreme Court on theground that he had furnishedfalse information about his edu-cational qualifications. Prithviraj,who represented Manipur’sMoirang Assembly seat, haddeclared in his affidavit at thenomination stage that he was anMBA, which was not correct.

The Court did not buythe argument of theMLA that the errorwas clerical andmade by hislawyer and agentwho, accordingto him, had filedthe nominationon his behalf in2012. He evencontended thatthe mistake wasa minor one. Butthe Court tookinto account thathe had submitted

the same information in 2008 aswell and ruled that he could notbe spared.

Observing that voters couldnot be misled and had everyright to know the background ofa candidate, including educationqualifications, the Court ruledthat candidates were duty-bound to provide correct infor-mation as laid down in law.

SC pulls up Bombay HC

The Supreme Court refused toissue instructions for making

yoga a must in school curriculum. Itobserved that the onus was on thegovernment and the academiciansto take a call on the issue.

The Court felt that yoga shouldbe taken up voluntarily rather thanbe enforced. The Court’s responsecame while it was dealing with a

petition filed by advocate AshwiniUpadhyay. He wanted the Court toenquire of the government whyyoga had not been made mandatoryin schools.

The Court, however, allowedUpadhyay to present his argumentsin another plea on the same matterfiled by advocate JC Seth which islikely to be heard on November 29.

Areview petition by social activistHarsh Mander in the Supreme

Court was rejected recently. Manderhad earlier challenged the acquittal ofBJP president Amit Shah in theSohrabuddin Sheikh encounter casein the Supreme Court, but did notreceive a favorable response.

The top court took the stand thata person could not be “interminably prosecuted”. It had questioned hisright to interfere in the matter whenhe was not a party to it in any man-

ner. Shah had been pronounced notguilty by a lower court in Mumbai.

After going through all thedocuments, the Court stood byits earlier judgment observingthat there was no “error” in it.

Sohrabuddin and his wifewere killed by the Gujarat policein 2005. Later it was allegedthat both were killed in a fakeencounter orchestrated by thestate government and Shahwas involved in it.

Review petition on Sohrabuddin rejected

The Bombay High Court in a scathingobservation pulled up the

Maharashtra government for its apathytowards providing infrastructure andstaff for the judiciary. It lamented thatthe prevalent attitude was a major bott-leneck in reducing pendency of casesin the state and affecting the justicedelivery system in the state’s judiciary.

The Court’s response came in dur-ing the hearing of a petition filed by theMaharashtra Sales Tax Tribunal Bar

Association, which had pleaded for providing the requisite infrastructureand staff.

The state government’s counselinformed the Court that the slot for thejudicial member of the Tribunal wouldnot remain vacant for long. Affidavitsassuring efforts being made to recruitthe essential support staff for the Tri-bunal as well as according priority forproviding accommodation to judicialofficers were also submitted.

Accord priority to judiciary’s concerns


Yoga can’t be enforced


COURTS

Questions on Tipu Jayanti The Karnataka High Court asked a

petitioner, who had raised objectionsto the state government observing TipuJayanti on November 10, to make hiscase before the state chief secretary. It also asked the latter to arrive at adecision by November 8, but at thetime of going to press, the state government was in no mood to reviewits stand.

In its last hearing, the Court, too,had wanted to know why the state gov-ernment was celebrating the birth

anniversary of the “Tiger of Mysore”. It felt that Tipu was only a monarchguarding his own territory and disagreed with the contention of thestate government that he was a free-dom fighter.

The PIL was filed by KP Manju-nath, who pleaded that the govern-ment’s decision to celebrate the occa-sion by using money from its consoli-dated fund was ill-conceived. He con-tended that Tipu had killed Kodavas ofthe Coorg region.

The Madras High Court orderedtopmost officers of the municipal

administration and water supplydepartment as well as town planning,Chennai, to furnish reasons as to whythey did not attend a critical meetingon floods caused by the North-eastmonsoon every year.

It did not even spare the CMD ofChennai Metro Water Supply andSewerage Board, who was the chair-

man of the panel.A PIL filed by an NGO, Change

India, wanted the Court to order theconcerned bodies to desilt stormwater drains and other water bodieswhich may lead to floods this year. Inresponse, the Court had directed thata special meeting be held to discussthe issue. However, it learnt that sen-ior-most officers did not deem itimportant to attend the meeting.

Sajjan Kumar’s plea dismissedCongress leader Sajjan Kumar’s request

for removal of a judge from the DelhiHigh Court bench hearing the 1984 anti-Sikhriots’ appeals was turned down by the DelhiHigh Court. The Court did not find any basis

for his objections. The plea was also filedby his co-accused.

The judge in contention was JusticePS Teji. Kumar and his co-accusedpleaded that it was Justice Teji who, asan Additional Sessions Judge in a Delhicourt, had refused to grant bail to him in2010. They contended that Justice Teji

was anti-Kumar, and as a result, could not dojustice to the latter. They argued that he wasalso taking undue interest in the matter.

Kumar was held not guilty by a trial courtin 2013 in a case related to killing of Sikhs inthe Delhi cantonment area. However, the CBIhad raised objections on the verdict andmoved the High Court. The Court’s orderagainst Kumar’s petition came while it washearing the CBI’s plea.

The Court observed that already morethan 30 years had passed and there was afeeling that justice had not yet been done.

—Compiled by Prabir Biswas, Illustrations: UdayShankar

Civic authorities pulled up


The widely condemned govern-ment’s move to ban NDTV India

for a day was put on hold byInformation and BroadcastingMinister Venkaiah Naidu after theSupreme Court agreed to hear thechannel’s application for a stay on theban. An inter-ministerial committee ofthe Information and BroadcastingMinistry had recommended thatNDTV India should be shut down for

a day for revealing strategically sensi-tive details during its coverage of thePathankot attacks in January this year.The move had left the media fraternityoutraged and the Editor’s Guildtermed it as “direct violation of thefreedom of the media.” While veteranssaid that the ban was reminiscent ofthe Emergency, various Press Clubsalso demanded an immediate with-drawal of the ban.

The Supreme Court hasreprimanded the center

for allowing bull-fighting,jallikattu and bullock cartraces stating that suchsports could not be permit-ted on grounds of cruelty.The apex court held that itis the government’s consti-tutional obligationto showcompassion towards ani-

mals. The bench questionedthe validity of the center’snotification which allowsbulls to be trained or exhib-ited as a performing animalat events such as the bull-taming festival of TamilNadu jallikattu and bullockcart races in Maharashtra,Karnataka, Punjab,Haryana, Kerala and

Gujarat. Thecourt referredto Article 48and 51A of theConstitutionand said thegovernmentshould showcompassiontowards ani-mals.

SC pulls up center

After a Supreme Court benchheaded by the Chief Justice

of India recently observed thatthe government was trying todecimate the judiciary by hold-ing back appointments, the firstlot of High Court judges hasbeen appointed. The govern-ment has notifiedthe appointment offive judges for DelhiHigh Court. Threeadditional judgeshave also beenappointed as perma-nent judges of theBombay High Court.Among the DelhiHigh Court judgesare Anil KumarChawla, Vinod Goel,Chander Shekhar,

Anu Malhotra and YogeshKhanna. According to a sepa-rate notification, KalidasLaxmanrao Wadane, IndiraKanahaiyalal Jain and ShaliniShashank Phansalkar Joshi havebeen appointed as judges of theBombay High Court.

Delhi HC gets five new judges

NDTV fights for its freedom

NATIONAL BRIEFS

In a surprise move intendedto eliminate black money and

the growing menace of coun-terfeit currency notes, theUnion government onNovember 8 withdrew curren-cy notes of `500 and `1,000denominations. These accountfor over 80 percent of all cur-rency in circulation by value.Banks and ATMs remainedclosed on November 9 and

people faced difficulty in carry-ing out their daily shopping.Newly designed notes of `500and a new `2,000 currencywas made available fromNovember 10. The move waswelcomed as a bold one bypeople on social media. The old notes of `500 and`1,000 can be deposited inbanks and post offices tillDecember 30.

Second surgical strike

—Compiled by Karan Kaushik


Dargah Aala Hazrat in UP has notinvited any cleric from Pakistan to be

a part of its annual Urs-e-Razvi to be heldfrom November 24 this year in the wakeof the recent terror attacks and tensionalong the India-Pakistan border. SixPakistani clerics had sent requests to thedargah for allowing them to participate

but the authorities have decided not toissue sponsorship letters to any of them.Last year, 12 clerics from Pakistan wereinvited by the dargah, and five had partic-ipated in the Urs. The seminary’sspokesperson said that local clerics wouldrequest other foreign clerics attending thefestival to ask Pakistani leaders to con-demn terror and create an atmosphere offriendship between the countries.

To bring in transparency in judicialfunctions and to help in the effective

tracking of judicial work, the govern-ment has issued unique identificationnumbers to 16,795 judges of district andsubordinate courts across the coun-try. The government is modernizingthe courts as part of the e-courtsproject monitored by the SupremeCourt. The judges have also beenprovided digital signatures so thatthey can sign orders which can thenbe uploaded in real time. To facilitate

this task, laptops, printers and internetconnections have also been given to thejudicial officers. Supreme Court andHigh Court judges have been exemptedfrom this exercise.

Making judicial functions transparent

India took a strong stanceon terrorism and security

issues with the UK duringPrime Minister TheresaMay’s recent visit to NewDelhi. According to sources,the two countries also talkedabout financial defaultersVijay Mallya and Lalit Modi,who have made the UK theirhome and are wanted by the

Enforcement Directorate inmoney laundering cases. Inthis context, both the leadershave directed the officialsdealing with extraditionmatters from both sides tomeet at the earliest anddevelop a better understand-ing of the legal processes andrequirements of the twocountries.

India asks for Mallya, Lalit from UK

The NationalCommission

for Women hasstrongly opposedinstant divorceand polygamypracticed byMuslim men. Thecommission hastold the SupremeCourt that tripletalaq is an uncon-stitutional prac-tice which hasruined the lives ofmany women andshould be strictlyprohibited. “NCWis supporting thestand of theunion govern-ment and isadapting the affi-

davit filed by it,”the commissionsaid in its affi-davit filed inresponse to abunch of petitionsmoved in theapex court by sev-eral women. TheCenter had filedits affidavit in theSupreme Courton October 7 andhad requested thecourt to abolishtriple talaq andpolygamy,terming them asunconstitutionalcustoms hurtinggender equalityand women's dignity.

NCW opposes triple talaq

No Pak clerics

The University GrantsCommission’s Saksham

report rules state that no educa-tional institution can issue gen-der biased orders and that theinstitutions should ensurewomen’s safety without curbingtheir freedom. However, womenstudents at the government-runByramjee Jeejeebhoy Medical

College in Pune have beenbanned from using the collegelibrary after a set deadline.No such deadline has beenissued for the male students. Thecollege is implementing theorder so strictly that guards withbatons come to the library everynight and ask the female stu-dents to leave.

Deadline only for women


Donald Trump as the 45th president of the US evokes fearand apprehension. Will he have the foresight to take everyone

forward and are there enough checks and balances to prevent the worst excesses?

By Kenneth Tiven

BOLD AND SWEEPINGUS President Donald Trump points out

falling balloons to his wife Melania (left)and son Barron (second left) as he

stands with running-mate Governor MikePence (right) at the end of the final session of the Republican National

Convention in Cleveland, Ohio

LEAD

Divided State

UNI


EXPLAINING how Americanvoters went from the firstblack American presidentwith high approval ratings, ahigh Dow-Jones MarketIndex and global adulation toa president-elect with the

backing of the Ku Klux Klan is not easy. Thisis, in some respects, the second AmericanRevolution, 240 years after the first. In the1776 event, the British were sent packing anda democracy created. This election sends theworld packing—you are on your own now—and we don’t care what happens outside thewalled enclave of North America.

Where is there joy now? Try Moscow andBeijing. A narcissist with no grasp of truthwho can’t be trusted with a Twitter accountwill have the nuclear war codes in his smallhands. If this event is a prelude to globalchaos, there is plenty of blame to go round.In 1976, the movie Network, about a madraving anchorman was considered over-the-top by journalists, politicians and viewers. Itcame to be considered prescient with thearrival of news channels with ideologicalpositions and scant regard for truth.Prescient doesn’t do it justice, as a reality TVshow host with an inflated net worth andmore bravado than business skill attains theoffice of president of the United States.

While several states’ votes will have to bere-counted because the percentage differ-ence is so close, nothing is likely to change.The Al Gore-George Bush race in 1990ended only when the US Supreme Court(dominated by Republican appointees)seized jurisdiction to decide as a matter ofconvenience that Bush was the winner. Thedemographics of this unexpected Trumpsweep helped convince the Democratic lead-ership that their energy was better spent on

introspection regarding their future direc-tion. They were stunned, much as theCongress Party in India in 1976 after theirfirst loss post-Independence.

REALITY SHOWThis election was a reality show waged onsocial media, which one can conclude nowhas replaced mainstream journalism andmedia as the primary conduit of political dis-course. The internet technology acclaimed asthe great democratizer at its inception hasbecome a highway for conspiracy theoriesand outright lies, told big and frequently.Scoring likes and dislikes has not provenitself a replacement for considered discus-sion of policy and its ramifications. In thiselection, vague assertions of policy—build awall, deport immigrants, fix the world’sbiggest and most expensive military, asser-tions that the nation is dystopian—wereaccepted as an adequate substitute for howto deal with domestic and global issues.

In what was expected to be a big night

STUNNING DEFEATDemocratic presidentialnominee, Hillary Clinton

of America

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for women in American politics only twoDemocratic women triumphed: KamalaHarris, the California Attorney General andan Indian-American, winning that state’ssenate seat as Hillary Clinton swept upCalifornia’s 55 electoral votes. In the state’spredicted to go for Clinton it became clearthat men for Trump—mostly white without acollege education—brought along theirwomenfolk. Sisterhood finished second toharmony in the bedroom. And so did anyDemocratic hopes of controlling the Senate.Harris is the first Indian-American sent tothe US Senate. She leaves for Washington.Hillary Clinton skips Washington and staysin New York. At 68 years, she is unlikely to

compete for office again, but her career sug-gests she will not disappear from view.

Immigration issues will be a major con-cern for those wishing to emigrate toAmerica and immigrants already here legal-ly. Indian families in the US will be dealingwith anxious children, worried that theirfamily and their futures are not secure, espe-cially if Trump’s campaign demonization ofimmigration continues once he takes office.India and other nations have supplied sever-al generations of new Americans, helpingbreathe innovation into our business andsocial life. Crucial to this are H1B visas andGreen Cards. Presidents cannot change lawsat will, but Executive Orders provide a wayfor them to impact the way laws and regula-tions are applied by federal agencies. Thealready tortuous path to get into the UScould be slowed and made more byzantine.

RELUCTANT AMERICANSOne of the initial reactions is how couldpolling of voters’ attitudes and leanings be sofar off the mark. It’s not satisfactory to blamepollsters as biased. For several reasons, it hasbecome increasingly difficult to get a repre-sentative sample together. People today inAmerica are reluctant to talk to pollsters.Social media can be downright anti-social. Afriend told me he was unfriended onFacebook because he was a Trump support-er. More than that perhaps, phones are no

LEAD

Technology has a greater impact onelections in India and America thanideology. There is empirical as well

as anecdotal evidence that a changingcommunications environment supports achanged political situation. Consider themobile phone impact of burst SMS,WhatsApp, Skype, as well as the socialmedia phenomenon of Facebook and itsclones in vernacular languages. In theUS, all of this has been applied on behalfof candidates at all levels, plus using the

video wall for visual advertising on televi-sion. In the 2014 election in India, theBJP adopted a new motif to print adver-tising and campaigning to offset theabsence of political adverts on TV.

FOCUSSED ADVERTISINGAmit Shah and the BJP brain trust usedthe media in ways that India had neverseen before. They adapted the TV con-cept of being pervasive--by optimizingthe still relevant newspapers of India. The

way this was done implied a wave of BJPenthusiasm among readers. Morningafter morning, the main newspaperswere wrapped with advertising for theelection. The plethora of news channels--some of which I helped build and train--were well-used, amplified by a better-trained cadre of politicians. Social mediaapps provided Indian voters with the illu-sion of being connected and not just aface in the crowd.

In this endless year of Donald Trumpas the main Republican Party figure, Isometimes ask: “Are there more crazyand stupid people today than there usedto be?” I don’t think so, but the ease withwhich people can find like-minded peo-ple to hang out with is vastly simpler thanit used to be. And hang out they do...creating dangerous bubbles of informa-

Getting wired in politics The use of social media during elections has changed the fortunes of manypoliticians and given voters the illusion of being connected and counted

TORN IN THE USA Indian Americans will

be keeping a closewatch on the new

dispensation

Twitter

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longer landlines attached to an address.Ascertaining socio-economic data to balancethe polling sample is difficult when so manypeople now use just a mobile smart phone.This may sound like a lame excuse, but it is areality. Urban voters are probably oversam-pled compared to rural voters. All of this is ashort and simplistic explanation of thepolling issue; however, the actual votingbehavior seems to suggest it is real.

Once the media organizations tookTrump seriously and probed his taxes, hisbusiness affairs, his 3,000-plus law suitsover treatment of vendors and contractors,stories appeared that would have discrediteda candidate in the past. As an avatar formorality in personal and business life, hisappeal to evangelical Christians should havecollapsed. It did not. Opposition to abortionand gender equality trumped everythingelse. When Donald Trump left the safety ofthe Republican primaries and started to rantabout things, he would have disappeared in aprevious generation. He did not. For manyvoters, their feelings were more critical thanfacts. The Trump approach treated opposingfacts as lies and it worked.

It is easy to now package Trump in thesame sentence as Hitler, Mussolini, andBerlusconi, although Trump seems to con-sider Putin as the ideal style of a leadership.The Republican Party’s initial ambivalenceto Trump will not be forgotten by a man who

believes such behavior requires revenge.Assisted by a core of hard right-wing advi-sors, it is logical to think he will take totalcommand of the office, dictating to Senateleader McConnell and House Speaker Ryanas if they were functionaries at his real estatecompany. Perhaps since Franklin Rooseveltin 1936, few have arrived at the White Housewith so much power divorced from the polit-ical party apparatus.

Are there enough checks and balances inthe political system to prevent the worstexcesses? Half of America and all of the wordhopes so. Perhaps Trump has enough self-awareness to rise to the challenge in waysconsistent with the leadership of a largenation, which is quite different from being atax-dodging landlord and builder. Yet, every-thing in Trump’s history suggests this may besomething he cannot fake. Those of us in theUS who have a differing view will have to doour best to make sure it doesn’t spiral out ofcontrol. The rest of the world will have to bepatient in dealing with a government run bysomeone with no experience in public policyand consensus leadership.

The writer has been a journalist inAmerican media for more than 50 years

with stints at The Washington Post, NBC,ABC and CNN and was involved in the start

up of Aaj Tak and continues to work withseveral Indian news channels

Indian families inthe US will bedealing with anxious children,worried that theirfamily and theirfutures are notsecure, especially ifTrump’s campaign demonization ofimmigration continues oncehe takes office.

tion and thinking. It’s not all lies. Lookclosely at Fox News--much of the crimesthey commit against journalism are ofomission, failing to state half of whatsomeone said or to ignore the context ofa story.

So for millions of short attention spanAmericans, this fine mesh of half-storiesand half-truths forms the basis of whatthey think is happening. And yes, there isan underlying racism, a pervasive dis-trust of people who don’t look like youthat amplifies the discussion to danger-ous levels. When the Make AmericaGreat Again slogan appeared, those ofus with strong, progressive and left-wingleanings knew exactly what it said: MakeAmerica White Again. I have strong fami-ly connections with media and WallStreet--back in the early 1980s almost

everyone knew thatTrump was not terriblysmart, a classical grifterwith a few extra zeroson the money line.

MEDIA BASKETToday, television ismore realistic withblacks, Hispanics,gays, straights, vam-pires, paranormals: adivergent and muchlarger pool of choices than ever before.Some people tell me this is evidence thatthe nation has gone to hell in a mediabasket and it should be returned to whatit was. So in the US, we have peoplebetween 50 and 70 years who have dis-covered that life didn’t play out the way

they saw it on TV and believed they wereentitled to inherit. Today they are angry!

All of this helps explain why people—some of them smart and my friends—think that Trump is an acceptable choiceto lead the nation.

By Kenneth Tiven


SUPREME COURT

IT may sound rather strange that thetwo main political rivals in Punjab, theShiromani Akali Dal (SAD) and theCongress, had at one point or the oth-er endorsed the construction of the

contentious Sutlej-Yamuna Link (SYL) canaland had worked towards its completion. For,now the parties are vying with each other tooppose its construction, tooth-and-nail.

The issue of sharing the Ravi-Beas waterswith Haryana had been pending since the

Reorganization of States 50 years ago. Eversince the construction of the canal wasabruptly stopped in the early 80s after mili-tants attacked and killed a senior engineerand workers, it has remained a dormant yetemotive issue which is always revived duringelection time.

This time round, with assembly electionsjust two months away, it was bound to be-come a major issue as the Presidential Ref-erence before the Supreme Court was sched-uled to come up before the retirement of oneof the judges on the five-member bench.

PRESIDENTIAL REFERENCEThe apex court gave its decision in favor ofHaryana on all the four points for whichPresidential Reference was sought. Thesepoints related to the Punjab Termination ofAgreements Act, 2004, which had sought toscrap all inter-state agreements unilaterally.

SYL’s Choppy WatersWhile the apex court has ruled in

favor of Haryana and not Punjab in theSutlej-Yamuna Link (SYL) canal dispute, it

is sure to become a poll issue By Vipin Pubby in Chandigarh

WATER WARThe dilapidated

SYL Canal atRopar, Punjab

Courtesy: The Indian Express

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While the Haryana government had movedcourts against the Punjab legislation, Pun-jab’s governor had sent the Bill for the con-sideration of the President. He had subse-quently referred it to the Supreme Court.

As expected, all major political parties inPunjab reacted sharply to the apex court de-cision. Punjab Congress chief Captain Ama-rinder Singh was first off the block with hisresignation as a Lok Sabha member. He alsosaid that all party MLAs would be submit-ting their resignations from the assemblyand the party would launch an agitation.

Punjab Chief Minister Parkash Singh Ba-dal reiterated his stand that “not a drop” ofwater would be allowed to flow out of Punjabeven if that meant defying the country’s topcourt. He announced convening of a specialmeeting of the assembly to pass a resolutionagainst the Supreme Court's response to thePresidential Reference.

AMARINDER’S MOVEPolitics over the issue was revived in 2004when Captain Amarinder Singh was the chi-ef minister. He piloted a bill to scrap allagreements on the water issue. Badal wasthen the leader of the opposition and hisparty fully supported the move and theassembly passed the Bill unanimously.

Twelve years later, on March 14 this year,there was a role reversal. The SAD-BJP gov-ernment led by Badal moved the contentiousPunjab Sutlej-Yamuna Link Canal Land(Transfer of Proprietary Rights) Bill 2016seeking to return the land acquired for con-struction of the SYL canal. He and his gov-ernment got the unstinted support of the ri-val Congress with Captain Amarinder Singhhailing the move.

Immediately after the Bill was passed, thestate government encouraged farmers tolevel off the constructed parts of the canal.Some Congress leaders too joined in theeffort by arranging earth-moving equip-ment. However, the High Court intervenedafter Haryana complained and the executioncode was stopped.

BJP IN A FIXThis issue could become a major one in theelection campaign as Punjab goes to polls

early next year. Although, the stand taken bySAD is well-known, for the first time, theBJP will find itself in a bind.

While the BJP is the junior coalition part-ner in Punjab, it is the ruling party for the fi-rst time in Haryana. Haryana Chief Minis-ter Manohar Lal Khattar has been pushinghard for getting SYL waters for Haryana,while the party’s Punjab unit does not favorwater flowing outside Punjab.

The new entrant on the scene, the AamAadmi Party, is blaming both the Congressand SAD over the SYL issue and for not get-ting “justice” for Punjab. The party had givenan affidavit in court favoring the flow of wa-ter from Punjab. However later, party supre-mo Arvind Kejriwal said the affidavit was fi-led by a junior advocate after Haryana re-minded Delhi that it too was getting waterfrom Haryana.

While political parties in Punjab will rakeup this issue, most people seem convincedthat it is now a dead one. Only the use offorce to complete the canal can lead to ten-sion. But even that is highly unlikely and cer-tainly not during the run-up to the impend-ing assembly elections.

The President may or may not accept theSupreme Court's views, but it is certain thathe will not take any decision on the matter inthe near future.

While political parties in Punjab will rake up the issue,most people seem convinced that it is now a deadone. Only the use of force to complete the canal could lead to tension. Even that is highly unlikely.

PRINCIPAL PLAYERS(From left) PunjabCongress chief CaptainAmarinder Singh, chiefminister Parkash SinghBadal, Haryana chiefminister Manohar LalKhattar

Photos: UNI

DEFENSE

THE LoC between Indiaand Pakistan is not theonly hotspot for the armedforces right now. Anotherbattle, albeit bullet-lessthank God, is heating upin our own backyard.

Here, our men in uniform, represented by vet-erans, are once again engaged in a crusade forwhat they believe is justly theirs. And thispolitical war has already produced a hero—veteran Subedar Ram Kishan Grewal of the105 Infantry Battalion. He recently commit-ted suicide.

This tragedy, which has caused nationwideanguish and an outpouring of street and socialmedia protests from ex-servicemen, has re-ignited the One Rank, One Pension (OROP)debate. You thought it had all been settled,and the pitiable sight of ageing vets protestingat Delhi’s Jantar Mantar had evanesced like abad dream? Not by a long shot.

Subedar Grewal killed himself because hewas incensed over what he perceived to be agross injustice and breach of faith by the government. He did not receive what he was informed he was entitled to under theOROP scheme passed by the Narendra Modigovernment.

What’s going on here? Why is the BJPsquandering the goodwill of the fauji commu-nity, a large chunk of which rallied aroundModi to give him and his party one of thelargest landslide victories in recent electoralmemory?

Opposition leaders like Rahul Gandhi,Arvind Kejriwal and Jyotiraditya Scindia

found the gallant subedar’s tragic suicide theperfect theatre for street drama as they court-ed arrest (Rahul with a bunch of supportersscreaming “Rahul Gandhi ki jai”) near RamManohar Lohia Hospital in a lachrymose dis-play of public sympathy for the deceased andhis bereaved family.

Unfortunately, this whole issue of pensionparity for retired servicemen, going backdecades, has become a political drama. Itbounced on to center-stage on September 15,2013, in Rewari, Haryana. Modi began hisnational election campaign debut here imme-diately after being anointed the BJP’s primeministerial candidate.

At this mother of all rallies attended by1,00,000 people, the aspiring PM, accompa-

The Curse The faujis are unflinching in their commitment to protect our border. Why

HE DIED FOR JUSTICE Subedar Ram Kishan Grewal


High Court, has submitted its report to thegovernment, which, sources say, validatesmany of the grievances of the protesting vets.But for some strange reason, it is being keptunder wraps.

Maj Gen Satbir Singh (retd), chairman ofIndian Ex-Servicemen Movement (IESM),has said for the record: “Justice Reddy hassubmitted the report on Oct. 25, then why is itkept confidential? It is not about operationsdetails. It is about the welfare of soldiers. Letthem put it out.”

As The Hindu succinctly put it: “The majordemands of the veterans are equalization ofpension annually and not five years, personnelopting for Pre-Mature Retirement (PMR)

nied by former Army Chief General VK Singhand former Army officer and Olympic medal-ist Rajyavardhan Singh Rathore, pledged to implement the decades-old demand byIndia’s vets for OROP within 100 days ofassuming office.

The gap between promise and perform-ance is what is causing today’supheaval. In a nutshell, the faujis are

peeved with what they say is a total falsehood.Government spin doctors have blitzkriegedthe media with the assertion that OROP hasbeen implemented as promised. But theaggrieved pensioners argue that this is blatantdissimulation: All that has happened is a one-time enhancement of the pensionwith a revision every five yearsinstead of a yearly increase.

To rub more salt into thewounds, spokesmen supportingthe government have decried theprotestors’ demands as “greed”.This, above all, has devastated thefaujis’ sense of honor—theirizzat—which many consider moreimportant than life itself. Thejudiciary entered the fray whenJustice Dipak Misra of theSupreme Court asked the govern-ment to answer the assertion thatthe Modi government hadwatered down the OROP schemeto the detriment of the vets.

In the latest development,Justice L Narasimha Reddy,retired chief justice of the Patna

of OROP then do political parties deny them their due? BBy Inderjit Badhwar


DEMANDING THEIR DUEEx-servicemen returning their medalsin protest against thenon-implementation of OROP

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should also be eligible for the OROP, imple-mentation from April 2014 and not July 2014,take the highest pay scale of 2013 for revisingpension and not the average of the maximumand minimum as intended by the governmentand not to link the OROP with the SeventhPay Commission.”

Perhaps Rajya Sabha MP and business-man Rajeev Chandrasekhar should make theReddy report public. There is no reason why itshould be treated as a national security secret.

Chandrasekhar, who is an activist fordefense personnel causes, also rightlypoints out that the OROP mess is not

entirely the creation of the Modi government.It has deeper roots, some of which germinatedduring the Congress regime. So he finds theRahul Gandhi protest at which his followerswere screaming his praises, an example ofcrass exhibitionism.

On November 4, Chandrasekhar penned apersonal “Dear Rahul” letter to the Gandhi,excerpts of which are worth reproducingbecause they shed considerable light on the background of the vexatious OROP controversy:

“Most Indians are anguished about the sadand tragic suicide of Veteran Subedar Ram

Kishan Grewal of 105 Inf. Btn TA and DSC. Isuspect you were trying to convey your deepfeeling and concern by visiting the family ofthe Veteran at Ram Manohar Lohia hospitalalong with an entourage shouting ‘RahulGandhi ki Jai’.

“However, may I respectfully suggest thatgoing with an entourage shouting ‘RahulGandhi ki Jai’ to a hospital full of patients andworrying relatives may not be the best way toshow your recently discovered concern forVeterans.

“I say recently discovered because you andyour successive UPA Government’s actionsand conduct on One Rank, One Pension(OROP) are there in the public domain andworth reiterating.

“Let me jog your memory. While Ihave raised the demand for OROPsince I stepped into Parliament in

2006, it was during the terms of the Congress-led UPA-1 and UPA -2 that I wrote several let-ters to and had several meetings on the matterwith the then Prime Minister, DefenceMinister, Chairperson UPA and also to youurging for implementation of the long pend-ing OROP. All of them were met with either a‘can’t do it’ or a stony silence. There was even

DEFENSE

POLITICALMILEAGE

(L-R) Delhi ChiefMinister Arvind

Kejriwal andCongress vice-

president RahulGandhi near Ram

Manohar LohiaHospital in Delhi tomeet the deceased

subedar’s family

(Facing page)Narendra Modi hadpromised OROP at

a rally in Rewari,Haryana, in 2013 as

he flagged off his election campaignfor the 2014 polls

UNI


a Parliamentary Committee of Petitions underShri Koshiyari that studied a petition that Iwas instrumental in submitting and even itsreport submitted in 2011 was ignored by theUPA government.

“I had first written to you on OROP andother Armed Forces related issues way back in2011, but you neither replied to it nor took anyaction. It probably wasn’t politically ‘interest-ing’ enough for you then. It took you years toeven mention and get to that issue—and eventhen it was only before Elections 2014 as apre-poll election stunt. It was then that Iwrote to you in February 2014 where I laudedyour belated interest, reminding you of howbelated it was with a list of all my letters writ-ten to then Prime Minister, Defence Minister,Congress Chairperson and yourself requestingyou to address the serious issue and preventfurther alienation and disenchantment in theVeteran community.

“Even when the OROP was hurriedlyannounced by your Government prior toElections, adding insult to injury was yourFinance Minister allocating a mere `500crore—a cruel joke which would not have beenenough for enhanced pensions for even 10%of the Veterans.

“It took the current Government, despite

serious objections from the Finance Ministryabout the fiscal implications, to announce andimplement OROP—costing almost `8,300crore per annum and a one-time cost of morethan `20,000 crore—correcting a four-decade-old injustice perpetrated on ourVeterans. Because, as its worth remindingyou, in 1972-73 it was Smt. Indira Gandhi,then Prime Minister who in one stroke termi-nated OROP after the 1971 Indo-Pak War. In2002, Congress President Sonia Gandhispoke and advocated for OROP at a politicalrally, but then followed it up with being inpower until 2014 and not having it imple-mented. The Congress in 2004 even includedthe OROP in its manifesto promising a solu-tion, but spent the entire term and then thenext denying the same to the Veterans.

“Perhaps you also need to be reminded thatin 2008 the then Defence Minister Shri AKAntony stated that the UPA Government hadnot found the OROP demand acceptable! TheUPA Government had rejected the OROPdemand, holding that it would be a hugefinancial cost of over `3,500 crore then.

“When I joined the Veterans in theirprotest in December 2008 as they sat for arelay fast at Jantar Mantar or when theVeterans marched to Rashtrapati Bhawan

“I had first writtento you on OROPand other ArmedForces relatedissues way backin 2011, but youneither replied toit nor took anyaction. It probablywasn't politically'interesting'enough for youthen. It took youyears to evenmention and getto that issue….”

—RajeevChandrasekhar,

Rajya Sabha MP,in a letter to

Rahul Gandhi

in 2009 surrendering their medals to thePresident for non-implementation of OROP, I do not recall you or anyone in your party saying a word in support or doing anythingabout it.

“You may want to be reminded that it wasthis refusal to implement OROP by theCongress-led UPA Government that led me tofacilitate a petition by citizens and Veterans tothe Committee of Petitions, Rajya Sabha, thatresulted in the Koshiyari Committee report of2011, tabled in Parliament only to have yourUPA Government respond thus—‘Not possi-ble because of administrative, financial andlegal complications in implementation of theOROP scheme.’

“My repeated letters and interventions inParliament continued through the regime ofCongress-led UPA -1 and UPA -2 and neveronce do I recall you showing solidarity withthe struggle of the Veterans. In August 2010, Ideclined to accept the salary hike given to

MPs until the OROP issue was settledcompletely.

“There’s much to be reminded ofon the larger aspect of welfare ofArmed Forces and Veterans— like theUPA Government’s track record onwelfare and key issues like lack of vot-ing rights for Armed Forces, lack ofadequate housing for serving forcesand families, etc. or maybe these areissues that are not currently politicallyinteresting enough.

“Rahul—I accept the prem-ise that yours may be acase of belated wisdom

and compassion dawning. That is agood thing. But it’s a bit trite toassume that past records of politicalparties will be forgotten and that thecountry doesn’t realise how far wehave come in the cause of serving andrepaying our Veterans in the past twoyears compared to the past fourdecades.

“Yes, there are some pending com-plex issues in OROP, including somefundamental issues to ensure consis-tency with the definition of One Rank,

One Pension. These were referred to theOne-Man Judicial Committee set up to lookafter these anomalies. This Committee hasonly recently submitted its report and weshould look to them.

“The death of Subedar Grewal is a terribleblot on a nation that takes pride in its ArmedForces and the tradition of service and sacri-fice they represent. It is indisputable that overthe past several decades, the Defence Ministryand bureaucracy has become apathetic anduncaring to the plight of our Veterans, widowsand serving forces and their families.

“There is no doubt that this needs chang-ing and transforming and that must be wherethe genuine political anger, if any, must befocused. Grandstanding and political oppor-tunism tends to stale rapidly and hypocrisyeven faster.”

Point taken, Mr Chandrasekhar. But yourletter further strengthens the belief of thosewhose comment on this issue is a terse, “a poxon both their houses”.


DEFENSE

Justice Dipak Misra of theSupreme CourtThe judiciary enteredthe fray when heasked the govt toanswer the assertionthat the Modi dispensation hadwatered down theOROP scheme.

Justice L NarasimhaReddy, retired CJ, PatnaHigh CourtHis report to the govtvalidates many of the grievances of theprotesting vets, asper sources. But it’s being kept under wraps.

AK Antony, DefenseMinister in UPA-I and UPA-II He had said that thedemand for OROPwas unacceptable tothe UPA as it wouldentail a cost of `3,500crore, Chandrasekharin his letter to RahulGandhi claims.

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STATES

WITHIN 48 hours of thecontroversial policeencounter where eightsuspected SIMI under-trials were gunned down in Bhopal onOctober 31, the Shivraj

Singh Chouhan government went fromchest-thumping to damage-control. Jointteams of the Bhopal police and Anti-Terro-rism Squad (ATS) had killed these undertri-als on a hilltop, 10 km from the highly forti-fied Bhopal jail. Since then, conflicting ver-sions have surfaced from the police and statehome minister, leading to allegations that itmight be a fake encounter.

JUDICIAL PROBEThree interventions forced the state govern-ment to order a judicial probe into the “cold-blooded murders”, according to the defenselawyer of the slain undertrials, Pervez Alam.On November 2, Bhopal-based journalistAwadhesh Bhagrava filed a PIL in theMadhya Pradesh High Court seeking a judi-

cial inquiry. The same day, the JabalpurHigh Court issued notices to the governmentadvocate and ATS seeking a detailed reporton the “encounter” of these suspected SIMImembers. Bail applications of some of theslain undertrials were scheduled for hearingbefore the bench headed by Justice CBSirpurkar. “We petitioned for a detailedreport about the encounter, including theautopsy papers,” said Naeem Khan, counselfor several of the alleged SIMI members. TheNational Human Rights Commission(NHRC) and state’s human rights commis-sion (MPHRC) also issued notices to thestate government, police and prison authori-ties. MPHRC sought a report within 15 daysfrom IG (Bhopal range) over the encounter.

Although the defense lawyers are opti-mistic about getting justice from the Court,they are unhappy about the state govern-ment instituting a judicial commission head-ed by retired high court judge SK Pandey. Asfor the other three probes ordered by thestate government, the defense lawyers arenot hopeful of unearthing the truth behind

MP’s Jailhouse

Rock The killing of eight SIMI undertrials by the

Bhopal police has raised many uncomfortable questions and could lead to

a protracted legal battle By Rakesh Dixit in Bhopal


the jailbreak-encounter. These probes are byformer DGP Nandan Dubey, by a SpecialInvestigation Team and by a magistrate.

“How can the culprit (the state govern-ment) unilaterally order a judicial probe by aretired judge into the extrajudicial killingswithout consulting the chief justice of theHigh Court? This militates against the veryspirit of natural justice,” Alam told India Le-gal. He demanded a judicial probe by a sit-ting High Court judge instead. He also mo-ved petitions in the High Court on behalf offamily members of the slain undertrials. TheCongress too is contemplating filing a PIL inthe Supreme Court to seek direction for a ju-dicial probe by a sitting judge. “Our lawyers,Vivek Tankha and Kapil Sibal, are examiningdetails of the extrajudicial killings,” said stateCongress president Arun Yadav.

The prospect of multiple judicial scruti-nies into the controversial police encounterhas added to the state government’s worries.It is already rattled by a series of audio-videoclips of the encounter that went viral insocial media and news channels.

PUBLIC ENDORSEMENTA day after the encounter, Chouhan soughtpublic endorsement of the killings in a func-tion to mark Madhya Pradesh Founding Dayon November 1. A 10,000-strong crowd atBhopal’s Lal Parade Ground comprisingmostly of BJP and RSS supporters and gov-ernment employees saw Chouhan exhortingthe crowd to raise their hands if they app-roved of the deaths of the “dreaded terror-ists.” The crowd obliged with lusty chants of“Vande Mataram” and “Bharat Mata Ki Jai”.Justifying the encounter, Chouhan told rep-orters that the “timely killings” had saved thenation from many possible terrorist strikesand the loss of innocent lives in future.

The scene evoked memories of previouselection rallies in Gujarat where NarendraModi, then the state’s chief minister, soughta similar public endorsement for the deathsof Ishrat Jahan and Sohrabuddin, victims ofcontroversial police encounters in Gujaratbetween 2004 and 2008.

State BJP president Nand Kumar SinghChouhan said that it was the chief minister’sdesire to nab the escapees dead or alivewhich had enthused the police to eliminatethe terrorists. Neither the BJP nor the policeseemed unduly concerned over the damningaudio-video evidence about the encounter. Itwas only after the Court intervention thatthe government’s and BJP’s rhetoric gaveway to damage control. Police officers

ALL IN A DAY’S WORK(Above) Chief Minister ShivrajSingh Chouhan on MadhyaPradesh Founding Day urgedthe crowd to applaud thekillings of suspected SIMIundertrials (Facing page) Bodies of theundertrials UNI

IL


were told to keep shut and a judicial probeordered. Excited BJP cadres were asked tocancel plans to facilitate police officers andthe government withheld the cash award ithad announced for the police personnel whowere part of the encounter till the judicialprobe was complete.

SC GUIDELINESOn September 23, 2014, the Supreme Courtwhile hearing an appeal by the People’s Un-ion for Civil Liberties against the State ofMaharashtra laid down 16 guidelines in caseof death due to police firing. One of themstated that it must be ensured that rewardsare given or recommended to the police per-sonnel only when gallantry is established be-yond doubt. Cash rewards to four villagerswho claimed to have provided first informa-tion about the escapees were also withheld.

The swift damage control may have pre-vented further taint on the state govern-ment’s image but it has to brace up for a longlegal battle ahead. Unanswered questionsabout the controversial jailbreak and subse-quent encounter are too many and too dis-comforting to answer, aver the SIMI opera-tives’ defense lawyers. Those killed in the en-counter include Sheikh Mujeeb, MohammadSalik, Khalid Ahmad, Majid, Amjad, Ma-hboob alias Guddu, Aqeel Khilji and ZakirHusain. Of them, Zakir, Amjad and Ma-hboob had escaped from Khandwa jail too inOctober 2013. The SIMI operatives were fac-ing sedition charges. They were arrested for

running the banned outfit’s activities in Ma-dhya Pradesh and robbing banks to financetheir operations. They were accused of kill-ing two policemen in the past, and of rob-bing banks, including Manappuram Bank inBhopal. However, in one of the bank robberycases, some of them were acquitted.

ALMOST ACQUITTEDAccording to defense lawyers Alam and Tha-havur Khan, none of the slain undertrialswas a SIMI operative. Secondly, trials agai-nst them for the last three years had turnedfutile as the prosecution failed to corroboratecharges against them. “Four of them werenear acquittal and it defies logic to believethey would do a jailbreak,” Alam added.

Thahavur Khan said: “The trial was goingon and there were only 18 to 20 witnesseswho remained to be questioned. There wasno ample evidence against them, factually orlegally. There was no reason for them tobreak jail. The court judgment was expectedto come out in weeks.” All the accused werebooked under multiple sections of the Un-lawful Activities Prevention Act. The maincharge slapped against them was Section153A (promoting enmity between differentgroups on grounds of religion, race, place ofbirth, residence, language, etc. and doingacts prejudicial to maintenance of harmony).

Two slain undertrial prisoners—Khiljiand Amjad—were in police custody evenbefore they were formally declared arrestedunder terror charges on June 13, 2011. Advo-cate Javaid Chauhan of Khandwa, who rep-resented Khilji, said: “In some cases, the evi-dence of guilt is identical. For example, thesame copy of a magazine has been producedin at least four different cases across the sta-te. The same receipt of contribution to SIMIfunds has been produced as evidence in twodifferent cases.”

The state government has not counteredthese allegations. Nor has the prosecution orthe ATS come out with any explanation onthe progress that was made in collecting evi-dence against the SIMI undertrials whowere in Bhopal jail since 2014. A total of 29alleged SIMI undertrials are in Bhopal jail.There is more to this than meets the eye, it seems.

PRISON TALESBhopal’s central jail

from where the SIMImen allegedly escaped

STATES

“The trial wasgoing on and

there were only18 to 20

witnesses whoremained to be

questioned.There was no

ample evidenceagainst them,

factually or legally. There

was no reasonfor them to break jail.”

—Thahavur Khan,defense lawyer


STATES

CAN an Indian court demandthe identity of the personwho uploaded a particularcontent on an internatio-nally accessible website? Thisquestion has gained signifi-cance after the Madras High

Court passed multiple orders, the latest onOctober 27, directing Google and its sub-sidiary YouTube to provide the IP addressand details of a user accused of uploadingdefamatory content on the video sharingsite. However, Google and YouTube are hes-itant to reveal the identity since this willbreach the privacy clause which they havewith the concerned user andmake them vulnerable to privacylawsuits in other countries.

Along with Google and You-Tube, online activists of TamilNadu are also concerned. Reason:they fear that they can no longerseek refuge behind the anonymityoffered by the internet and wouldstand expose not only to the sta-te’s scrutiny but also to a barrageof litigations if the order is imple-mented and sets a precedent.

But what is the genesis of thecourt order? Lebara Foundation,a Chennai-based organizationfighting child poverty, petitionedthe Madras High Court to directYouTube to remove what it calledan objectionable and defamatoryvideo against it uploaded by MSMarupakkam Seithigal.

Hearing the petition, Justice

MM Sundresh on May 13, 2016, not onlydirected YouTube to remove the objection-able content but also provide the IP addressand other user details of Seithigal. BothYouTube and Google filed a modificationpetition and the same were heard by thesame judge and he passed an order on June23, 2016, reiterating his earlier ruling.

MODIFICATION PETITIONS YouTube and Google then filed anothermodification petition and after hearing elab-orate arguments from both sides, JusticeSundresh passed a detailed 18-page order onAugust 29, 2016. The judge dismissed

A recent Madras High Court’s directive to YouTube and Google to provide the IP address and details of a user uploading defamatorycontent has rattled online activists in Tamil Nadu By R Ramasubramanian in Chennai

Blow against Net Freedom

Bhavana Gaur

YouTube’s contention that it had compliedwith the single judge’s order by blocking theviewing of the video in India but couldn’t dothe same outside the country.

The Lebara Foundation contended thatit wants the IP address and the details to filea civil defamation suit against MSMarupakkam Seithigal. “The major part ofthe order passed by this court has been com-plied with. However the direction issued tofurnish the correct IP address along with thename of the author of the offending URLoutside the country has not been furnishedwith. The offending video of the website wasavailable in the website of YouTube whichcould be accessed by anyone from outsidethe country and hence the respondent/plain-tiff (Lebara Foundation) wants to have theIP address so as to proceed against thesepersons who are responsible for the same,” it said.

Interestingly, the court dismissed You-Tube’s two major arguments: (a) YouTubeand Google are only facilitators and no direc-tion can be sought for against them and (b)furnishing the user details would expose theuser to the rigor of any law that would beavailable in other countries. In support of hisarguments, YouTube’s lawyer also cited theYouTube and Google privacy and communityguidelines.

The judge also mentioned that the aver-ments made by Google through an email to

YouTube’s counsel on July 25, 2016, did nothold: “As per Section 1782 of Title 28 of theUnited States Code and by filing a ‘John Doe’lawsuit in Santa Clara County, California oreven invoking diplomatic procedure such asHague Evidence Convention, which providesa mechanism for non US persons and enti-ties who wish to obtain evidence to do sothrough US Department of Justice, Office ofInternational Judicial Assistance in Wash-ington, DC one can get the details. But thishas to be done through the U.S. Departmentof Justice, Office of International JudicialAssistance in Washington, DC”.

For this Justice Sundresh observed thefollowing: “Sub Section b of Section 1782 ofTitle 28 of United States Code is as follows:‘(b) This chapter does not preclude a personwithin the United States from voluntarilygiving his testimony or statement, or pro-ducing a document or other thing, for use ina proceeding in a foreign or international tri-bunal before any person and in manneracceptable to him’.”

JUDGES COUNTERThe High Court order also speaks about how“A John Doe Law Suit is filed if the true iden-tity of the defrauder is unknown. A civil suitis filed using a John Doe for the Defendant’sname. It is necessary to provide all emails;letters wire transfers etc. that show that theidentity or location of the Defendant is notknown. The purpose of such a suit is to ob-tain a subpoena (it’s a document that req-uires its recipient to appear in court as wit-ness) and of the unknown fraudster in orderto obtain the person’s name and address inorder to file a civil suit”. Quoting this section,Justice Sundresh said: “If a person is agg-rieved by the offending video uploaded by anunknown Phantom, then the identity willhave to be known or else there will not beany remedy in the eye of law.”

Likewise, on the privacy policy, the judgequoted Google’s own provisions: “We willshare personal information with companies,organizations or individuals outside of Goo-gle if we have a good faith belief that access,use, preservation or disclosure of the infor-mation is reasonably necessary to: meet anyapplicable law, regulation, legal process or

IN A FIXGoogle and YouTube are

hesitant to reveal the identity of users as it willbreach a privacy clause

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enforceable governmental request, enforceapplicable Terms of Service, including inves-tigation of potential violations, detect, pre-vent or otherwise address fraud, security ortechnical issues ….”

YouTube and Google appealed againstthis ruling and a division bench of theMadras High Court headed by Chief JusticeSanjay Kishan Kaul and Justice R Mahe-devan on October 27, 2016, dismissed it. Thebench said it is not some secret informationaffecting the personal rights of the undis-closed second respondent (MS MarupakkamSeithigal). It is only the identity and addressof that person so that the Court can takeappropriate process to determine the rightsof two respondents (Lebara Foundation andMS Marupakkam Seithigal). The bench alsogave two weeks time to YouTube and Googleto disclose the IP address.

ONLINE ACTIVISTS CONCERNEDThis judgment has jolted online activists inTamil Nadu. Speaking to India Legal, theyexpressed fear that this would terribly affecttheir work. “Anonymity is the charm andstrength of internet. There may be 5 to 10percent misuse which is negligible. This rul-ing will have a cascading effect on the workof online activists in Tamil Nadu wherein thestate government has been hell-bent uponfiling defamation cases right, left and centeragainst media persons and politicians. Thereare 213 defamation cases filed by ChiefMinister Jayalalithaa alone and no oneknows the count in the districts. By using thenet’s anonymity, online activists were able tobring out leads in many corruption cases andthese were later picked up by the main-stream media,” said A Shankar, a Chennai-based on-line activist.

Another online activist, Sam Ponraj, reit-erated this apprehension. “This ruling willdefinitely affect our work. For example, onplatforms like Facebook, the identity of thepage administrator is not known. Now, thiswill expose them. For a country like India,and especially in Tamil Nadu where gettingcredible information from the governmenton any issue is extremely difficult, anonymityis a tool to bare the truth and place the samein the public domain.”

Another online activist however has aslightly different take. “Indian IT laws arestrong enough to elicit the relevant informa-tion from the service providers. So the Mad-ras High Court is well within its rights inpassing an order like this. But if there is aclash between any law and Article 19 (whichensures freedom of expression) then the lat-ter should prevail. I feel this is one casewhere there is a clash between Indian ITActs and Article 19.”

He cited the recent case involving Jaya-lalithaa’s health. “The police have arrested 10people for spreading ‘rumors’ on Jaya-lalithaa’s health. Still, hundreds of posts areregularly appearing in social media abouther condition and this is crucial when thetraditional media is just parroting monoto-nous medical statements of the hospital. Ifanonymity is not preserved, then not a singlesocial media post on sensitive and importantissues will be possible.”

It is not clear whether YouTube and Goo-gle will comply with the High Court’s ordersor go for appeal. But the final outcome of thecase will be watched closely by those whosupport and oppose internet freedom. IL

The ruling will have acascading effect ononline activists in TamilNadu where there are213 defamation casesfiled by Chief MinisterJayalalithaa alone.

Justice MM Sundresh onMay 13, 2016 directedYouTube to remove theobjectionable contentand provide the IPaddress of the personwho uploaded it.

STATES

THE 1975 blockbuster Deewar cata-pulted Amitabh Bachchan to star-dom and immortalized some of hisdialogues from the film. Amongthese were: “Jao jaake pehle us

aadmi ka sign lekar aao, jisne mere haathpar yeh likh diya…(Mera baap chor hai).”

Bachchan had the benefit of being a heroand his director, Yash Chopra, made surethat he generated huge public sympathy withthe disclosure about how his arm was tat-tooed with the words “mera baap chor hai(My father is a thief)” and how it impactedhis life. In real life people are not so lucky.

Eighteen years after the film’s release, afew policemen from Punjab appeared to

have taken all the wrong lessons from thefilm. They caught hold of four women, whomthey suspected of being pickpockets, and tat-tooed the word jebkatari (pickpocket) ontheir foreheads. The crudely inscribed tattooon these women, who belonged to the Sansitribe which is considered a criminal one,ruined their lives and those of their childrenbut failed to evoke the kind of public sympa-thy the case deserved.

Now, 24 years after the gruesome incident at Rambagh police station inAmritsar, a CBI special court has awardedthree year’s rigorous imprisonment (RI) toSuperintendent of Police Sukhdev SinghChinna and Sub-Inspector Narender Singh

Brand of ShameTwenty-four years after four women from Punjab were branded on theirforeheads as pickpockets, the guilty policemen have got away with amild punishment by a CBI courtBy Vipin Pubby in Chandigarh

OVER-STEPPING THE LINEThe three women who

were branded


Facebook

IL

investigation which later took place. Thecase lingered for 24 years and the perpetra-tors of the atrocity finally got away with acomparatively mild sentence.

In the meantime, the trauma that the vic-tims underwent not only affected them, buttheir children and extended families as well.It took them nearly one-and-a-half years toundergo surgery for removal of the tattoo butthe scars remain even today.

One of the victims, Parmeshwari Devi,65, says her family life was disrupted afterthe word jebkatri was inscribed on her fore-head. “Two of my married daughters faceddivorce while no one was prepared to marrymy third daughter.” She said that her onlyson, who was humiliated by his peers, died ofdepression. She admits that she was involvedin petty crimes but asks whether it is justi-fied for anyone to brand her forehead.

Another victim, Mohinder Kaur, 64, saidthe incident still haunts her. She recalls thatshopkeepers would tease her and all herneighbors would keep away from her and herchildren. She said her husband died due tothe humiliation meted to the family. Her son,33-year-old Pappu, who was in Class VIwhen the incident happened, recalled thathe was always the suspect if anyone lost astationery item or pencil in his classroom.He said his classmates made fun of him and,later in life, police from neighboring areaswould pick him up for questioning if anypetty crime took place in the area.

Although the victims have expressedshock and dismay at the courts letting off theaccused so lightly, there is little likelihood ofthe sentence getting challenged. The victimsare too poor to hire a lawyer to challenge theverdict and the CBI has shown no inclina-tion of taking it up further. No human rightsorganization has come forward to pursue thecase. Some newspapers in the region didcarry a few stories in the inside pages but thestory was completely ignored by the elec-tronic media. It would not have fetched anyTRPs as it was not related to the nationalcapital, the middle class or celebrities.

Unlike the character played by AmitabhBachchan in Deewar, the victims will have toforget about the incident and learn to livewith it.

Malhi who was then the Station HouseOfficer (SHO) of Rambagh police station.The court of CBI judge Baljinder Singh alsoawarded one year RI to ASI Kanwaljit Singh.They denied that they had branded the fore-heads of the women and said that it wasdone by the women’s neighbors who were fedup by their habit of pickpocketing.

MILD CHARGESThe policemen were prosecuted by the CBIunder Sections 326 (Voluntarily causinggrievous hurt), 342 (Wrongful confinement),346 (Wrongful confinement in secret) and34 (Common intention) of the IPC.Obviously the charges slapped against themwere too mild, which helped them get awaywith a comparatively minor penalty. The vic-tims neither had the means nor the supportto pursue the case, argued a CBI lawyer.

As per the victims, they had a spat withsome local policemen over the running of anillegal distillery. This annoyed the then SPand SHO. The women were caught onDecember 8, 1993, from near the GoldenTemple and taken to the police station. Theyalleged that Malhi, the then SHO, orderedsome policemen to tie them to chairs andwrote the word “jebkatari” on their fore-heads with a black pen. He then ordered hiscolleagues to get a machine used for inscrib-ing utensils and got the word branded ontheir foreheads.

After about a week, they were presentedbefore a local court in Amritsar with theirforeheads covered with cloth but one of thewomen displayed the tattoo in the court.Though the court did not take cognizance,the local media picked up the story and high-lighted the atrocity committed on thewomen who were then in their 30s.

HC ORDERThe National Human Rights Commissiontook up the case and approached the Punjaband Haryana High Court on January 17,1994. It sought compensation for the victimsas well as a CBI investigation into the inci-dent. The High Court subsequently ordereda compensation of `50,000 each towards thecost of plastic surgery for removal of the tat-too on their foreheads. It also ordered a CBI

“Two of mymarrieddaughtersfaced divorcewhile no onewas preparedto marry mythird daughter.”

—Parmeshwari Devi,one of the

branded victims


STATES

IS the young Aam Aadmi Party(AAP) losing its sheen fightingon many fronts? It appears soeven though Delhi chief ministerand AAP chief Arvind Kejriwalhas claimed that while his legalbattles are still on, his party’s

expansion plans to Goa, Punjab and otherstates are on track.

Ever since he took over as Delhi CM forthe second time on February 14, 2015,Kejriwal has been courting controversies on administrative, legal, political and otherfronts. The chief minister has tried to make villains of the center, Prime Minister Narendra Modi and Delhi’s Lt-Governor Najeeb Jung for every failure ofhis government.

LOGGERHEADS WITH JUNGThe tussle for Delhi’s reins began within daysof Kejriwal taking over. He instructed offi-cials to route all policy files through him andnot the L-G. Jung struck back. Kejriwalclaims that the administrative measuresneeded to implement government policyhave also been routinely blocked by the L-G.The AAP government has been at logger-

The Delhi CM’s ding-dong battle with

Lt-Governor NajeebJung and others have

often seen him vanquished. Will this

have an impact on theforthcoming polls in

Punjab and Goa? By Kalyani Shankar

Kejriwal’sDentedImage

WHO’S THE BOSS?Delhi Chief Minister

Arvind Kejriwal (left) andL-G Najeeb Jung (right)


heads with Jung over appointments, trans-fers, file clearances and control of the police.

First, when Kejriwal passed an orderagainst the removal of illegal encroachmentsin Delhi, Jung let him know that the chiefminister had no power to issue it. In March2015, when the chief secretary of Delhi wenton leave for 11 days, Jung forced Kejriwal toaccept Shakuntala Gamlin, the power secre-tary, as acting chief secretary. The Anti-Corruption Bureau (ACB) became anothersticking point with the agency being headedby two people at the same time. The L-Gappointed MK Meena, while the Delhi gov-ernment appointed SS Yadav. The conflictcame to a head when Jung ordered that theACB would report to him directly. In recenttimes, after the court held that the L-G is theadministrative head of the national capital,Jung directed the heads of all departmentsto review orders and identify files for whichhis approval was required but not taken. Andthis month, the L-G transferred Delhi'shealth secretary Tarun Seem and PublicWorks Department secretary SarvagyaSrivastava among others.

There have been several legal battleswhich Kejriwal has taken to court over thepast two years. He had rushed to court everytime Jung overruled a controversial order ofhis regarding administrative powers. To Kejriwal’s dismay, the Delhi High Courthas set aside a number of decisions made byhis government.

PARLIAMENTARY SECRETARIESThe latest blow to Kejriwal came onSeptember 8 when the Delhi HC quashed hisgovernment’s notification appointing 21 leg-islators as parliamentary secretaries. Havingwon 67 seats out of 70, the AAP chiefappointed them to keep his flock happy. TheHigh Court observed that the order had beenpassed “without concurrence/approval of theLG”. The AAP had maintained that the postswere “not an Office of Profit” as the MLAs donot receive any pecuniary benefit whatsoev-er. The related question on whether the par-liamentary secretaries should also be dis-qualified as MLAs for holding an “Office ofProfit” is currently pending before theElection Commission.

For Kejriwal, the most important legalbattle is about the status of his parliamen-tary secretaries. Earlier on June 13,President Pranab Mukherjee had rejected anamendment proposed by the AAP govern-ment to the Delhi Members of LegislativeAssembly (Removal of Disqualification) Act,1997, which would have exempted a parlia-mentary secretary from the definition of“office of profit”.

This controversy began when theRashtriya Mukti Morcha, an NGO, went tocourt on March 15 for scrapping the appoint-ments as they were “illegal”. Article 191(1)(a)says that “a person shall be disqualified forbeing chosen as, and for being, a member ofthe Legislative Assembly or LegislativeCouncil of a State… if he holds any office ofprofit under the Government of India or theGovernment of any State specified in theFirst Schedule, other than an office declaredby the Legislature of the State by law not todisqualify its holder”. The AAP now claimsthat the legislators cannot now be disquali-fied as the position itself has been held “voidab initio” (to be treated as invalid from theoutset). “There are no parliamentary secre-taries in Delhi,” the AAP claims now.

OFFICE OF PROFITThough the constitution does not define theterm “office of profit” clearly, some

In March 2015,when the chiefsecretary of Delhiwent on leave for 11 days, Jungforced Kejriwalto acceptShakuntalaGamlin (left), thepower secretary,as acting chiefsecretary.


approval”, the government should not takedecisions. This came as a big setback forKejriwal, but he has not given up as he hastaken the fight to the Supreme Court now.

There has been an ongoing tusslebetween Kejriwal and Jung over manyissues, including the handling of governmentfiles. Two scams of hundreds of crores, bothinvolving issues such as bus services andwater tankers, could take the AAP chiefdown further. Politically, these court deci-sions could not have come at a worse time forthe AAP.

Controversies have been dogging theheels of the Kejriwal government from thebeginning. He first got rid of some foundingmembers such as Prashant Bhushan andYogendra Yadav. His postures of having amoral high ground are now dented. Thepolice have till now booked 15 AAP legisla-tors and arrested 13 of them on variouscharges in the past 20 months, including forcrimes such as abetment of suicide, domesticviolence, murder, sexual assault, molestationand possession of fake degrees.

SACKED MINISTERSKejriwal has sacked half of his cabinet forvarious crimes. Law Minister Jitender SinghTomar’s “bogus degree” became a major controversy in April 2015. Delhi’s Food andCivil Supplies minister Asim Ahmed Khanwas sacked on charges of serious corruptionafter a series of audio clips surfaced in thepublic domain.

On September 1, Kejriwal sacked hiswomen and child development minister,Sandeep Kumar, after receiving a CD wherehe was purportedly shown in a “compromis-ing position with two women”. Kejriwal hasalso annoyed bureaucrats who are caughtbetween him and the Lt-Governor over vari-ous appointments.

The root of the matter is that Kejriwalhad promised to get full statehood for Delhiin his party manifesto. This was a demandmade by his predecessors also. Unlike otherstate governors, who have to act on theadvice of the state cabinet, Delhi’s Lt-Governor has executive powers.

This is what makes Delhi both a UnionTerritory and a state. More importantly, the

The Anti-CorruptionBureau becameanother sticking

point. The L-G appointed

MK Meena (left), while the

Delhi governmentappointed

SS Yadav (right).

Supreme Court judgments have spelt out itsscope. For instance, in the Jaya Bachchancase in 2006, the Court said: “What is rele-vant is whether the office is capable of yield-ing a profit or pecuniary gain and notwhether the person actually obtained a mon-etary gain. If the ‘pecuniary gain’ is ‘receiv-able’… it becomes an office of profit, irre-spective of whether such pecuniary gain isactually received or not.”

The Jaya Bachchan case had also forcedCongress President Sonia Gandhi to resignand get re-elected to parliament in 2006 asshe was the president of the NationalAdvisory Council holding an office of profit.

Politically, these court orders have comeas a shot in the arm for opposition parties.They know that the AAP is weakened and itmay not get back these 21 seats if polls areheld in Delhi today. The BJP and theCongress expect the Election Commission todisqualify the 21 AAP legislators. They havestarted preparations for the by-polls already.The BJP which got just three seats last yearis now hoping to get at least ten more. TheCongress is enthused by the recent corpora-tion poll results where it bagged five seats.

PUNJAB, GOA POLLSIt suits the Congress and the BJP to confineKejriwal to Delhi to check his expansionplans in Punjab and Goa where elections aredue next year. However, the AAP is still opti-mistic that the Supreme Court might rule inits favor. As for his running battle with Jung,the High Court held on August 4 that the Lt-Governor was the final authority underArticle 239 and without his “concurrence or

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National Capital Region—which includesthe state of Delhi and adjoining territories inUttar Pradesh and Haryana—will involvesharing jurisdiction not only with the centerbut the two neighboring states as well.

Today, the AAP is at a point where, if itfails to conquer Punjab and/or Goa, it willfurther dent Kejriwal’s image. Even inPunjab, there have been revolts with theremoval of former AAP convener SuchaSingh Chhotepur after a sting operation thatallegedly showed corruption. BhagwatMann, popular comedian and AAP MP, hasalso been mired in controversies.

The entry of cricketer-turned-politicianNavjot Singh Siddhu has added to his problem.

The Congress and the BJP are bothentrenched in the political system. If theAAP has been passing through troubledtimes in its “home turf ” of Delhi as well as Punjab, then what is its future in far-away Goa?

The party may try to derive some advan-tage from the fissures that have appeared inthe ruling BJP in Goa because of a divisionwithin the RSS.

As for his national ambitions, Kejriwal

has built a good equation with Bihar chiefminister Nitish Kumar and West Bengalchief minister Mamata Banerjee. The Leftparties have mostly been watching the devel-opments, without taking a strong positionagainst the AAP.

The moral of the story is that the AAP isspreading the butter too thin by ambitiousexpansion plans, while ignoring the peopleof Delhi. Disenchantment has already set inand its support among the middle classeshas decreased.

The cheap electricity and water given bythe Delhi government and educationreforms may go some distance, but with theonset of dengue and chikungunya, the lack ofmedical attention for Delhiites may have animpact on Kejriwal’s expansion plans.

If the AAP wants to survive as a politicalforce, it has to redeem itself in Delhi and fol-low it up with an impressive performance inGoa and Punjab. Both appear to be difficult.If the party’s image goes down in Delhi, it isbound to start a chain reaction.

If the Election Commission disqualifiesthe 21 AAP MLAs, the by-elections whichmight follow will give a hint of which wayAAP is headed.

Jitender Singh Tomar The former Law Minister

was ousted by ChiefMinister Kejriwal after his

“bogus degree” became a major controversy in

April 2015.

Asim Ahmed Khan The Food and Civil

Supplies minister wassacked on charges of

serious corruption after a series of audio clips

surfaced in the public domain.


Sandeep Kumar The Women and ChildDevelopment minister

was sacked after the CMreceived a CD where he

was purportedly shown ina “compromising position

with two women”.

SPOTLIGHT

COME November, govern-ment delegations fromover 150 countries willdescend on Delhi toattend the SeventhConference of Parties(COP) of the Framework

Convention on Tobacco Control (FCTC).One of the most rapidly and widelyembraced treaties under the UN system, itcurrently has 180 governments as Partiescovering nearly 90 percent of the world’spopulation. As the treaty enters its seconddecade, India will be hosting the biannual

The roadmap for India’s tobacco control program lies in more stringentlaws and higher taxes to wean the public from the pernicious habit By Shoba John

Stubbing It Outgathering of its Parties, which decides thefuture direction of global tobacco control.

This is significant given that India is thesecond largest producer and consumer oftobacco, next only to China. Tobacco causesone million deaths in the country every year.Not to mention the related disability andproductivity loss. The direct and indirectcosts of treating tobacco-related diseases inthe country were estimated to be `1,04,500crore in 2011 (1.16% of the GDP). This wasabout six times the central excise revenuefrom all tobacco products that year. Thatimplies a huge net drain on the country’s

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economy and resultant threat to its development.

TOBACCO CONTROL EFFORTSThis drain on human and economicresources alone gives enough reasons forIndia to take serious steps to curb the tobac-co epidemic. India’s tobacco control efforts,in fact, paralleled the development of theFCTC. Even as India proactively contributedto the international negotiations, themomentum from them propelled the coun-try’s own comprehensive tobacco controllaw, the Cigarettes and Other TobaccoProducts Act (COTPA), 2003.

Thanks to this law, one can now breatheeasy in public places, including in restau-rants, workplaces, stadia, bus stops and pub-lic transport. The ad ban in the law broughtdown tobacco billboards and hoardings, pro-motion in mainstream media as also tobaccosponsorship such as of the country’s cricketteam. Tobacco packs now carry visible, pic-ture-based health warnings instead of therather ambiguous line, “Smoking is injuriousto health”.

India is among the few countries thathave banned the sale of tobacco by minors inaddition to sale of the product to minors andnear educational institutions. Tobacco con-trol has begun to find reflection in policies ofnon-health sectors. The ministry of environ-ment banned plastic sachets for tobaccopacks under its Plastic Waste ManagementRules, 2016. Similarly, Juvenile Justice (Careand Protection of Children) Act 2015 nowdeters giving tobacco to minors with strin-gent punishment.

Under the same law, India introducedrestrictions on the promotion of tobaccothrough display of tobacco products or theiruse in movies and television. Given thebroad viewership of Indian movies acrossthe world, this initiative has the potential tobecome India’s concrete contribution toreducing exposure to tobacco promotionsbeyond its borders. Meanwhile, the NationalTobacco Control Programme, launched in2007-08, is envisaged to cover the entirenation in the current Five Year Plan. StateTobacco Control Cells, inspired by the pro-gram, are evolving to be the nerve centers for

sub-national tobacco control enforcement,health promotion and cessation efforts.

INCREASED ACTIONIndeed, recent years have seen increasingaction by states to turn the tide againsttobacco. Except for a state or two, the resthave progressively banned various smokelessforms of tobacco. Punjab and Maharashtrahave set the ban on e-cigarettes rolling.Punjab also introduced first-in-the countryban on the sale of loose cigarettes (singlesticks) and tobacco in early 2015. HimachalPradesh followed suit on October 5, furtherrequiring licensing of tobacco retailing.Several states like Assam, Kerala and TamilNadu have been raising VAT on tobaccoproducts. All these have been efforts to make them expensive and out of reach, par-ticularly for vulnerable groups such as chil-dren and youth.

Last year witnessed tobacco controlemerging from the shadows to the main-

RAISING AWARENESSNGO activists take part ina rally to mark “World NoTobacco Day” in Kolkata

The direct and indirect costs of treatingtobacco related diseases in the countrywere estimated to be `1,04,500 crore in2011 (1.16 percent of the GDP).

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stream political and public discourse.Tobacco came to be the topic of discussion inprime time debates. “Tobacco Gate” broughtto light the blatant conflict of interest of law-makers with tobacco interests deciding ontobacco warnings in parliamentary commit-tees. Even the more recent Goods andServices Tax (GST) debates saw political par-ties taking cautious and considered views ontobacco, and rightly so.

FUTURE PLANNINGThe courts have been the harbingers oftobacco control in the country since the startof the century and continue to uphold soundpolicies over limited business interest.Despite intense litigation by tobacco compa-nies, a Supreme Court order has strength-ened the ban on smokeless tobacco inSeptember 2016, whereas it refused to staythe implementation of pictorial warningson tobacco packs.Tobacco control efforts take time to show

results. Meanwhile, tobacco consumptionlevels are increasing unabated, and more soamong vulnerable populations. Over onethird of Indians consume tobacco in oneform or the other (Global Adult TobaccoSurvey, 2010). Smoking among women dou-bled during 2005-2010. Tobacco use in Indiais also found to increase with decrease inincome and education levels, with the poormore susceptible to the habit.

This calls for expanding the scope of cur-rent laws, improving their enforcement andexploring evidence-based innovative policiesbacked by effective risk communication toget ahead of the tobacco curve. Here aresome suggestions on what ought to be done: Institute high tobacco taxes under GST:Tobacco taxes are considered to be the singlemost effective measure to reduce tobaccouse. A 10 percent increase in tax is projectedto reduce consumption by 2-8 percent indeveloping countries. The on-going discus-sions in the country around the GST lawpresent an opportunity to ensure that tobac-co tax serves its public health objective,alongside revenue collection.

Under the GST regime, chief economicadvisor Arvind Subramaniam has recom-mended a 40 percent tax on demerit goodslike tobacco (which translates to about 28percent of the retail price). Notably, WHOrecommends the taxes on tobacco to be atleast 70 percent of the retail price for it tomeet its health objectives. These taxes canalso provide a sustainable source of revenuefor various developmental efforts, includingtobacco control.Improve the current law: COTPA has runits course for over a decade and needs urgentimprovements. Public areas and transportwhere people gather for considerable timesuch as cars, work sites, living units withshared spaces and markets need to become100 percent smoke-free. The designatedsmoking areas allowed for large restaurantsin the current law is not only discriminatoryto smaller eateries (with under 30 seats), butnormalize tobacco use and make enforce-ment challenging—they need to go! Tobaccodisplays and advertising at points of sale andemerging media platforms need to be pro-hibited, given how they expose children and

BECAUSE HEALTHCOMES FIRST

Doctors with an effigymade from tobacco

pouches and cigarettepackets during an

awareness campaign on“World No Tobacco Day”

in Patna

Over one third of Indians consumetobacco in one form or the other.

Tobacco use in the country is found toincrease with decrease in income levels.

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SPOTLIGHT

youth to tobacco promotion. Several coun-tries have embarked on the path of plainpackaging to limit tobacco promotions onpacks and use it as a risk communicationtool instead. It is time also for India to con-sider plain packs, alongside ban on singleunit (sticks/pouches) sales.Enhance action on smokeless tobacco andbidis:India accounts for 74 percent of the300 million global smokeless tobacco users(NCI and CDC Smokeless tobacco report).Sadly, this makes it the oral cancer capital ofthe world and calls for policies specificallytargeted to reduce smokeless tobacco useand supply. While individual states have ini-tiated action under the Food Safety Rules, itwould take a nation-wide control on themanufacture and sale to move the countrytowards a tobacco-free future. Bidis, used byover 60 percent of the country’s smokers,mostly escape the tax net through variousloopholes. Economists suggest that increas-ing bidi taxes from the current 9 percent to40 percent of retail price can help avert up to15.5 million premature deaths caused by itssmoking. This, of course, needs to be aug-mented by continuing the efforts to reducecigarette consumption.Protect policies from tobacco industryinfluence: The FCTC (Article 5.3) requiresits parties to protect tobacco control policiesfrom tobacco interests. Tobacco industrypartnerships with various sectors within thegovernment raise serious concerns for tobac-co control in the country. An example beingthe partnership that International Tax andInvestment Center, a group supported bytobacco transnationals, sought with India’sMinistry of Finance to host its Annual Asia Pacific Tax Forum. Timely civil societyaction ensured that elected officials andWorld Bank refrained from participating inthis event.

Similarly, in 2010, the Karnataka HighCourt ordered the Tobacco Board, a govern-ment body under the Ministry of Commerce,to withdraw co-sponsoring the “greatesttobacco talk show on earth”—the GlobalTobacco Networking Forum 2010. A draftcode of conduct for government officials indealing with the tobacco industry was dis-cussed during the hearing. India needs to

urgently develop due diligence proceduresand clear conflict of interest policies for allwings of the government in the interest of itspeople’s health.

Several high-income countries have man-aged to reduce their tobacco prevalencethrough effective polices over the years.Some like Singapore, Ireland and NewZealand are now gearing up for a tobacco-free scenario through concrete measures.Last year, the UN Sustainable DevelopmentGoals set a target of 30 percent relativereduction in mortality from non-communi-cable diseases (NCDs) by 2030. Tobaccobeing a major risk factor for NCDs, achiev-ing this target requires high tobacco-burdencountries like India to accelerate their tobac-co control efforts. This calls for an end-gameplan for tobacco control in India.

Visible public support, high-level politi-cal will, coordination across ministries, deci-sive policies, robust enforcement machineryand an active civil society can propel thecountry in this direction. The SeventhConference of Parties could provide themuch-needed momentum to leap into thenext phase in tobacco control in India.

(The writer is former Chair of theFramework Convention Alliance, an

international civil society coalition thatadvocates effective implementation of

the Framework Convention on Tobacco Control)

RIGHT TO BREATHEHEALTHYA woman smokes acigarette next to a manwearing a mask inSingapore

IL

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IN the government’s fight against blackmoney and fake currency, PrimeMinister Narendra Modi took a dras-tic step on November 8, 2016, bydemonetizing all `500 and `1,000

notes in the country. Following theannouncement, all ATMs were closed for 48 hours and banks discontinued operationsfor a day.

The nation was told that the old highdenomination notes could be ex-changed forvalue at any of the 19 offices of the ReserveBank of India or at any of the bank branchesor at any head post office or sub-post office.The announcement came with a number ofdirections:

� A cap of `4,000 per person in cash was puton the old notes tendered at designatedplaces. The rest of the money tenderedwould have to be deposited in the bank. � Once the ATMs become functional, anindividual can withdraw up to a maximum of`2,000 per card per day up to November 18,2016. The limit will be raised to `4000 perday per card from November 19 onwards. � Cash can be withdrawn against a with-drawal slip or cheque subject to a ceiling of`10,000 in a day within an overall limit of`20,000 a week (including withdrawalsfrom ATMs) up to November 24, 2016.

The demonetization move was discussedthreadbare on APN Special Show, a currentaffairs program on APN news channel. Theopinion of the expert panel was varied,although the consensus was that it was agood move which could have been imple-mented in a more effective manner.

Pradeep Rai, senior advocate, SupremeCourt, had this take: “When it comes toblack money, what has been funneled out ofthe country has been converted into dollarsand pounds. The original idea was to bringback illegal money stashed abroad. But nowthe focus has shifted to tackling black moneyinside the country. Seven months back whenModi had decided to bring such a demoneti-zation scheme into effect, then RBI governorRaghuram Rajan had his doubts as he feltthat the price of the Indian rupee would fallglobally. He had, in any case, already giventhe notification to stop all notes printedbefore 2005 by March 2016. So can the ear-lier notification be made void by anothernotification now? If you are doing that thenenough time must be given.”

He added: “I am not saying the step iswrong. I am saying it could have been imple-mented in a more orderly way with properdiscussions with experts.”

Inderjit Badhwar, editor-in-chief of IndiaLegal, said: “I hope it works out. Apart fromthe raids in Pakistan, nothing significant hashappened in the past two years. Commoncitizens are the most affected by this demon-etization move. Unfortunately, people havefound a way to take full advantage of the sit-uation. They are asking for a commission of`100 in exchange of `500. People like Arvind

The jury is still out on whether the demone-tization move by the government was a

wise one. Will the surgical strike on blackmoney yield the desired result or will it just

add to the woes of the common citizen?By India Legal Bureau

ROUNDTABLE

Masterstroke? Anil Shakya


Kejriwal will take advantageand start a political protest.”

However, JD (U) leader KCTyagi endorsed and backedthe government’s move: “Ourparty has supported the cen-tral government in its fightagainst black money from thebeginning. A parallel economyamounting to lakhs of croresof black money is operating inthe largest cash economy ofthe world.” However, Tyagi’sonly criticism was that themove was “like a cosmetic sur-gery which might not have animmediate effect”.

Stockbroker and investorAlok Churiwala did not thinkit was a hasty move: “In myopinion, it is not a suddenmove. First, they introducedthe Aadhaar scheme, then thegovernment facilitated open-ing of bank accounts underJan Dhan Yojana scheme.Then, there was a schemewherein people could declaretheir black money. It was only after all thesesteps that the demonetization scheme cameinto effect. I am sure black money will comeout. Drug money, counterfeit notes and ter-ror money will stop.”

According to Dilip Bobb, senior manag-ing editor, India Legal, the immediateimpact of the demonetization would be onthe common citizen. He spoke about theconfusion and panic that had set in amongthe aam janata: “People are not sure of therules and what will happen next. So there isconfusion and panic. As far as Modi is con-cerned, he has taken a bit of a risk. He willalienate the common man.”

K Sreedhar Rao, former chief justice ofthe Gauhati High Court, fully supported thescheme and was all praise for the govern-ment: “The Supreme Court has been veryserious about the black money issue. Whenpublic interest litigations were filed before it,the apex court pulled up the government fornot taking proper steps to bring back blackmoney. The difficulty was that most of the

black money was stashed abroad. So theother more actionable step was to tackledomestic black money. As for public reac-tion, it is momentary. In fact, it is the com-mon man who will be benefitted by this inthe long term. The corrupt bureaucrat is fin-ished. So many areas where black moneyplayed a key role like films and real estatewill be hit.”

Advocate Keshav Mohan, however, point-ed out loopholes in Narendra Modi’s surgicalstrike: “Neither was this notification pub-lished in the public domain nor were anyviews taken on it. This should have beenimplemented phase-wise.” According to him,the reason for such a sudden and dramaticmove by the government was to ensure thatthose with black money do not get an oppor-tunity to convert their ill-gotten gains. “Weare yet to see its long-term effect though,”Mohan said.

Indeed, it would be weeks before a clearerpicture emerges on the failure or success ofthe latest strike against black money.

“RBI governorRaghuram Rajan hadalready given the notification to stop allnotes printed beforethe year 2005 by March2016. So can the earliernotification be madevoid by another notification now?”

—Pradeep Rai, SeniorAdvocate, Supreme Court

IL

“Our party has supported the centralgovernment in its fight against blackmoney from the beginning. However,this is like a cosmeticsurgery which might not have animmediate effect.”

—KC Tyagi, JD (U)leader

“It is the common manwho will be benefitedby this in the longterm. The corruptbureaucrat is finished.Many areas whereblack money played akey role like films andreal estate will be hit.”

—K Sreedhar Rao, former Chief Justice of

Gauhati High Court

INTERVIEW

“The Legal System Has to

Re-engineer itself,

Technologically”

The e-courts project is supposed to“enhance judicial productivity”, and to“make the justice delivery system affordable,accessible, cost-effective and transparent”.What has been your experience in the DelhiHigh Court? The e-court started operations on 15thDecember 2009; the court which I presidedover was the first paperless court in anyHigh Court in the country. The legal profe-ssion is reluctant in accepting technology;lawyers have not been enthusiastic to adaptto change! But they have to deal with mass-es of papers and documents. And on theoriginal side, where suits and original causesare to be tried, the records are by far, more

The e-court system has its roots ina 2005 Supreme Court e-commit-tee initiative, the “National Policyand Action Plan for Implementa-tion of Information and Commu-nication Technology (ICT) in theIndian Judiciary – 2005”. Thegoals of the project are: “to pro-vide efficient and time-bound citi-zen centric service delivery, todevelop, install and implementdecision support systems in courts,to automate the processes to pro-vide transparency of informationaccess to its stakeholders” and “toenhance judicial productivity bothqualitatively and quantitatively, tomake the justice delivery systemaffordable, accessible, cost effectiveand transparent.”

How does this work in practice?JUSTICE S RAVINDRA BHATwho headed the country’s firstHigh Court level e-court, shares his experience withNAYANTARA ROY. Excerpts:


Bhavana Gaur

voluminous than in other types of cases.It is in the original side that the firstpaperless court started operations inour court.

The work of a judge on the originalside is cut out—she or he has to managethe files assigned. The size of the filescan be daunting. For example, of the10,000 suits pending in December,2009 in the Delhi High Court, 2000were assigned to my court. So the ques-tion was, how to start the process. Theystarted by first digitizing the cases list-ed each succeeding day, week, month,and so on, on a month-to-month basis.

Can you explain how an e-court func-tions, especially how the judges use dig-ital or electronic files and what differ-ence it made in your functioning?In the e-courts, judges access the casefiles on the monitors in front of them onthe dais. These monitors are CPUs andconveniently enable viewing of severaldocuments, and in at least two win-dows; the judges use styluses to makenotes on the digital case files. Theseannotations and notes are saved andtagged with the judge's copy of the electronic case file for later referencewithout changing the original digitalcase files.

A useful feature is the program“Windows onenote”. It allows you tocopy paste documents, even in imageformat. As documents from the olderfiles are mostly scanned, this feature hasmade it easier to access them. We use astylus for highlighting text, and alsotake down notes electronically, so thenote becomes compact, making it easier to write a judgment based onthem. I usually “key in” or type most of the important judgments, parti-cularly the lengthier ones, so the process is simplified.

Digitization of case files involves thestoring, keeping of files and documentsin appropriate folders and archiving itconveniently for their easy and speedyretrieval. A typical suit file contains anorders folder (which has all the orders

arranged date-wise, passed in the case),a pleadings folder (containing all thepleadings—petition or suit or appeal,reply to those pleadings and so on) anddocuments folders, divided into theplaintiff or appellants’ and defendant orrespondents’ folders. To make it lesscumbersome, a “dustbin folder” was cre-ated for disposed of applications such asthe many interlocutory applications thatmay have come up in the course of thesuit or appeal but were disposed of andare no longer relevant to the decision ofthe main dispute in the suit or appeal. Aspecial software is used to bundle thesefolders files. All other software wasindigenously adapted by NationalInformatics Centre (NIC)) in consulta-tion with the High Court.

Could you describe some of your experi-ences in the e-court?The first judgment I wrote in the paper-less court was in a case with a trunkload of documents containing over1,500 pages! The case had been pendingfor about four years. To speed up hear-ings and shorten time, lawyers wereasked to prepare “convenience compila-tions” of the most relevant documents.Even these went into two to three vol-

umes. At that nascent stage of the proj-ect we couldn’t “bookmark” on the com-puter (i.e. the electronic facility to reachthe page one wanted, say, for example,“annexure 4” of a file or pleading). Nowbookmarks are routinely used, whichshortens the time to reach the con-cerned part or document in the file.Anyhow, using the e-files, I was able toreach the documents faster than thelawyers. The lawyers had to go throughhard copy volumes to find the appropri-ate document, get to the relevant pageand so on. But for me, it was much eas-ier. I could open the document in differ-ent windows and access them simulta-neously. I was able to conclude thathearing in one hour and was able todeliver the judgment in 15 days time.

My next assignment was the criminalroster. We were hearing appeals relatingto serious offences like murder, kidnap-ping, homicide, and so on. Every suchappeal file can contain between 600/700 pages up to about 4,000 pages. The trial court record is digitized foreasy access and reference.


YEARNING FOR ELBOW-ROOMFiles and archives clog up much of thespace in courts, like the Patna High Court

Pras

hant

Pan

jiar;

Surprisingly, many lawyers would cometo the court with a mental block,remarking that they couldn’t use thedigital file or electronic records as theywere too old to learn or had difficultiesin understanding how to use laptops orother computer devices. I would tellthem that if you have access to the trialcourt records your arguments willimmediately improve. Even olderlawyers came back saying, “I’ve learned”.People were happy that they were ableto get the record and this actually has-tened the process of the hearing.

Which of the courts in the Delhi HighCourt are e-courts?Currently, there are only three jurisdic-tions which are entirely digital. One istax, which I’m heading. Arbitration andCompany Law are the other two. Thereare no paper files at all, so there is no

need to scan documents. The lawyer forthe litigants files a CD. An electronicfolder is created from its contents. Thisis properly bundled, using standardsoftware and then it becomes part of thesystem which is taken up by the court.Each day’s cause-list and case files arecopied on to a pen-drive, which thejudge takes home and reads, preparesnotes, etc. No paper or hard copy filesare needed. Apart from the three com-plete digital or paperless courts, nineother judges preside over paperlesscourts. In all, 14 judges function in e-courts in Delhi.

You had mentioned a criminal case ear-lier. Are criminal matters not dealt withelectronically?It is not compulsory in criminal mat-ters. But I noticed that recording of evi-dence was being done in the computer,

so we asked that all judgments be senton the computer. This saves money forthe litigant and importantly, savespaper. It saves on a lot of file movement,which is inevitable when we deal withhard copy and paper files. A bench maytypically have 40 cases a day. Thatwould mean about 80 sorties of filesmoving back and forth between therecord room and the court for just onecourt room. Multiply this with 36 andyou could have 2,880 sorties a day inthe Delhi High Court. With all thismovement, papers could get misplaced.

When did the digitization processbegin?The digitization process in the DelhiHigh Court started about 10-11 yearsago, with digitization of disposed cases.The digitization of disposed-of files is anongoing process—after a designatedtime period, depending on the type ofcase, the original paper record isscanned and computerized and hardcopies are destroyed. This process ofdigitization of old records has freed upabout 35,000 sq ft of space in therecord rooms. The tangible value of thecost of such space in central Delhi canbe used for other needed expenditure.As many as 5.5 lakh files have been digi-tized and weeded out, which translatesto over 13.80 crore pages. Now, theentire basement in one block of theHigh Court and two floors of anotherblock have been freed up.


A CASE FOR DIGITIZATION(Right) Judge’s digital case

note from a disposed-of case;

(Below left) Two windowsopen simultaneously on the

screen which can be seen bythe judge in the court room.Both show different sections

of the same case file;

(Below right) Making notingsusing a stylus

INTERVIEW

IL

Delhi no longer prints the dailycause-list. It is electronically displayedon the website. Annually, `85 lakh wasspent on printing the cause-list, so thereis now a monetary saving, as well as sav-ing of paper. The new electronic cause-list is dynamic. Earlier, one had to readthrough the entire set of printed sheetsto find the cases you were looking for.Now, you can zero in on those casesthrough the search function. Also, ifanyone—lawyer or litigant—has tolocate specific cases listed for a particu-lar day, they can take a print-out of thecourt and judges dealing with theircases, they don’t need to print out thewhole list.

Recently there was news about a Keralacourt where the court-to-prison videoconferencing facility was stoppedbecause the government had not paidthe company that had set up the facilityand was running it. Have you experi-enced anything like this? No, there has been no such problem inDelhi. The government has always beenvery cooperative in these things. Judgeshave better access to technology. Lowercourt judges have laptops and options ofother electronic devices. We have desktops and access to data bases such asManupatra, LexisNexis and Westlaw.Besides the High Court, 12 e-courtsfunction from 11 district court complex-es, under the Supreme Court constitut-ed e-committee project—one in eachdistrict and two in the New Delhi court.

Case data relating to all districts isregularly updated on to the NationalJudicial Data Grid (NJDG).

How far do you see modern technologybeing used in the justice system? Arevirtual courtrooms a possibility?Yes. We have a new block coming up—C Block—which has 15 state-of-the-artcourtrooms. These are significantly dif-ferent conceptually. There is as muchnatural light as possible. Literally thereis transparency! The walls are glass allaround. The judge is not behind a

closed door, it’s literally an “open court”!There is an option of blinds that can bedrawn in case of distraction or otherproblems. We hope this will be spa-ringly resorted to.

These courtrooms are enabled forvideo conferencing. We visualize that inthe future litigants can depose andlawyers can argue from elsewhere.

Do you have a target for yourself?To achieve at least one judgment perday. For that, you require at least two- three hours’ study at home eachday; the process requires research, for-mulating the propositions and develop-ing them.

What do you see for the future?The legal system as a whole has to adaptand re-engineer itself, technologically, toface challenges of the times. India hascomplex problems and technology is nota magic wand which would sweep awayarrears in a short time. However, infor-mation technology provides powerfultools in promoting efficiency in theentire process chain.

Even if a road map is prepared andimplemented in stages within specifictime frames, the rewards can be signifi-cant. One should be able to see videoconferencing of arguments where thejudge may be in one place and theopposing lawyers in another place; orconversely, one lawyer may be elsewhereand the judge and another lawyer in acourt room. Barriers of time and placemay become irrelevant; documents andfile movement can be virtual; files canbe retrieved from secure digitalarchives. These are not visions for afuture generation, but something achie-vable within the next decade or so, ifthere is flexibility in approach by allconcerned: policymakers, lawyers,judges, and court administrators, etc.


The process of digitization of oldrecords has freed

up about 35,000 sq ftof space in the record rooms. As many as

5.5 lakh files havebeen digitized and

weeded out.

JUDICIAL AIDESThere are several websites which list casesfor perusal of judges and lawyers

SMOGPOLLUTION

Scourge of the

The Big, Bad Pollution Haze in Delhi and NCR left millionswith a choked feeling, watery eyes or seriously sick. Whenwill the laws be implemented and the guilty punished?By Ramesh Menon


has only got worse. In 2013, the WHO hadsaid that air pollution and other environmen-tal degradation cost India $80 billion per year,about 5.7 percent of the GDP.

Despite the dire effects on health, no con-crete action has been taken to punish theguilty. In Delhi, the level of particulate matter(PM) 2.5 is very high. This can seriously affectour health as it can penetrate lungs and thecardiovascular system, resulting in non-com-municable diseases such as stroke, heart disease, lung cancer and acute respiratory diseases like asthma. The worst sufferers arechildren and the elderly as they are the mostvulnerable.

PM basically refers to particle size lessthan 2.5 micrometers. To get an idea of howminute and invisible this is, a human hair is60 to 70 micrometers. The Indian standard of

IT is your right to breatheclean air. Ironically, over 17 mil-lion people in the capital and sur-rounding areas were gasping forbreath last fortnight or strugglingwith throat and eye irritation asthey faced the worst smog in 17

years. Many had to be hospitalized or be con-fined at home with oxygen cylinders. Underpublic pressure, the government shut schools,power plants and construction activity, prom-ised to crack down on those setting garbage onfire and started cleaning roads of mounds ofaccumulated dust. It was a measure that wastoo little, too late.

In fact, 23 years ago, I had written abouthow Delhi was the most polluted city in thecountry and how it was becoming unlivable. Iam doing it again. Nothing has changed. It

Anil Shakya

� Major sources of air pollution in India are fuel wood, bio-mass burning, fuel adulteration, vehicle emission and trafficcongestion� India is the world’s largest consumer of fuel wood, agricul-tural waste and biomass for energy purposes � Traditional fuel (fuel wood, crop residue and dung cake)dominates domestic energy use in rural India and accountsfor about 90 percent of the total. In urban areas, traditionalfuel constitutes about 24 percent of the total� Fuel wood, agro waste and biomass cake burning releasesover 165 million tons of combustion products every year� Vehicle emissions are worsened by fuel adulteration, poorfuel combustion, traffic congestion and low density of quality,high speed road network per 1,000 people� Many two-wheel, three-wheel and four-wheel vehicleslacked catalytic converters. Also, as the refining of oil andsupply of fuel was owned, regulated and run by the govern-ment, the quality was often lax� Adulteration of gasoline and diesel with lower-priced fuelsis common in South Asia, including India

MAJOR POLLUTANTSUNI


PM 2.5 is 40 micrograms per meter cube. Butthe levels in Delhi were between 120-150micrograms. According to WHO, healthimpacts start showing when it touches 10micrograms.

Thankfully, the courts have taken note ofthe suffering of Delhiites. Justice SwatanterKumar, chairperson of the National GreenTribunal, came down heavily on the Delhigovernment and neighboring states for theirinaction: “What steps have you taken on the ground other than holding emergencymeetings? Show us one thing on the groundthat is being done and that has been effec-tive?” Though an IIT Kanpur study had sug-gested comprehensive long-term and short-term measures starting from 2016 till 2023 to tackle air pollution in Delhi, it was ignored.Numerous governments have failed to arrestpollution. Unless it becomes an election issue,it is highly unlikely that anything will ever be done.

The deleterious effects of this pollutionwere seen in hospitals which reported a sud-den rise of patients with respiratory problems.Paranoid citizens also scrambled for masks aschemists ran out of them. There was a suddendemand for air-purifiers. But Dr Vikram Sar-bhai, senior consultant, chest, critical care andsleep medicine, National Heart Institute, said:“Installing air-purifiers on streets or even inhouses is a stupid move as we are trying to

Laws and environmentDespite numerous laws, implementation has often been knee-jerk and lackadaisical

POLLUTION

Anil Shakya

Article 21 of the constitution states:“No person shall be deprived ofhis life or personal liberty except

according to procedures established by law.”

In Charan Lal Sahu etc. vs Union ofIndia 1990 AIR 1480, a case related tothe Bhopal gas tragedy, a SupremeCourt constitutional bench extrapolatedfrom Article 21, that “The right to life andliberty also includes the right to healthyenvironment free from hazardous pollu-tants.” Later, in Subhash Kumar vs Stateof Bihar (1991) 1 SCC 598, the SupremeCourt again invoked Article 21 to hold

that this fundamental right “…includesthe right of enjoyment of pollution freewater and air for full enjoyment of life”. The “polluter pays” principle has beeninvoked against industries. The “precau-tionary principle” has been cited by theSupreme Court in, among other cases,Vellore Citizens’ Welfare Forum vs Unionof India and Ors., [1996] 5 SCC 647. Thisprinciple, in essence, requires that, “theState Government and the statutoryauthorities must anticipate, prevent andattack the causes of environmentaldegradation”. The Supreme Court wenton to say that the authorities should

“adopt the ‘precautionary principle’ andthereby ensure that unless an activity isproved to be environmentally benign inreal and practical terms, it is to be pre-sumed to be environmentally harmful”.

Environment is a concurrent subject.The Environment (Protection) Act, 1986was passed by parliament in the after-math of the Bhopal gas tragedy in orderto strengthen and coordinate betweenprevious acts related to environment andpollution such as the Air (Prevention andControl of Pollution) Act 1981 and Rules (Air Act) and the Water (Prevention andControl of pollution) Act 1974 and


purify infinity.” Incidentally, the Delhi govern-ment had announced that it would installgiant air-purifiers in some of the most pollut-ed road intersections.

While there is so much media andpublic attention on the conditionprevailing in Delhi, no one is talk-

ing of other cities which too are strugglingwith bad air quality, some worse than Delhi.We need to worry about Allahabad, Gwalior,Patna, Raipur, Lucknow, Khanna, Kanpur,Agra, Amritsar and Ahmedabad. The toxic airin these cities includes formaldehyde, nickel,sulfur dioxide and nitrogen oxide.

Though high decibel television debatesrocked living rooms as pollution was dis-cussed, why has Delhi woken up all of a sud-den to it? Everyone knew that therewould be high levels of pollution duringDiwali and a few days after it. So whydidn’t the government restrict the saleof crackers?

Pointed out Dr Sarbhai: “Pollutionhas been around for decades and noth-ing was done to tackle it. There hasbeen a systematic failure in terms oftown planning and regulation as evenvoters did not see it as an issue. Oncethe smog clears, it will be business asusual and television debates will moveto some other controversy. Unless indi-

viduals take up responsibility to cut down pol-lution, nothing will happen. How many of usare ready to compromise our lifestyle andcycle to work, for instance?”

Stubble burning in Punjab and Haryana,another cause of pollution, is not a new phe-nomenon either. Farmers now use machinesto harvest, leaving behind stubbles of aboutsix to eight inches long. These are set on fireby farmers to flatten the earth before sowing.Many cannot afford to employ laborers to getrid of it.

Former environment minister PrakashJavdekar had issued 37 specific steps to tacklepollution after a meeting of environment min-isters in 2015. He had asked states to banstubble and waste burning, do effective dustmanagement and phase out old vehicles. But

1. Delhi2. Patna3. Gwalior4. Raipur 5. Ahmedabad6. Firozabad 7. Amritsar8. Kanpur9. Agra 10. Ludhiana

India’stoxic cities

Rules (Water Act).The Central Pollution Control Board

(CPCB) and similar state boards havebeen created under these acts. TheCPCB is the authorized body for unionterritories as well but has the power todelegate its functions to bodies likeDelhi’s Delhi Pollution ControlCommittee. These Boards are monitor-ing and implementing agencies, workingunder an overall legislative mandatefrom the central government (theEnvironment Act and Air and Water Actsare all central legislations) with states fill-ing in the gaps. Implementation is donein conjunction with local agencies suchas municipalities.

In practice however, implementationhas often been knee-jerk, based largely

on compliance with court orders in amultitude of cases against activities such as stone crushing, burning of plas-tic and hazardous waste, vehicular pollution, etc.

Currently, the chief justice’s bench inthe Supreme Court is hearing applica-tions related to a variety of issues in MCMehta vs Union of India W.P.(C) No.13029/1985 PIL(W) (the diesel case)and various other petitions such as ArjunGopal and Ors vs UOI, a petition inwhich three toddlers filing through theirparents want a ban on firecrackers.

There is a legislative mandate and a

framework to work within but the lack ofwill to act is evident in the continuousneed for intervention by the courts.Senior advocate Vibha Datta Makhija,representing the petitioner in the case ofVasundhara Tewari Broota vs. Ministry ofHealth and Family Welfare and Others, apetition seeking a ban on firecrackersbeing heard in the Supreme Court, says:“…the government keeps on passing offplacebos instead of taking medicinalmeasures. What good is exemptingbursting crackers on religious festivalswhen the whole malady lies there...”.

—Nayantara Roy

UNI

it was not implemented.Though Delhi and cities around it such as

Gurugram, Faridabad, Noida and Ghaziabadwas choking with the blinding smog, crackerswere still burnt to celebrate Chhath Puja. It ispointless to blame the government when citi-zens themselves behave irresponsibly.

The Supreme Court minced no wordsrecently when it said that multiple agenciesmanning Delhi should work out a commonminimum program to save millions in thecapital who are facing serious health ailments.It asked the center to submit a blueprint onhow it proposes to tackle such a crisis. Abench headed by Chief Justice TS Thakurasked Solicitor General Ranjit Kumar: “Doyou have a plan before the entire city is shutdown due to lethal pollution that has reacheddangerous levels?”

A report by an SC-appointed committeehad termed the situation in Delhi a “public

emergency”. Aparajita Singh, who was assist-ing the court as amicus curiae, told the benchthat Delhi and its neighboring states were notfollowing the orders of the apex court on pol-lution control.

Earlier, the NGT had posed some toughquestions. In April 2015, it had put ablanket ban on burning waste in the

open and had imposed a fine of `5,000 forviolators. It wanted to know if any action hadbeen taken against those who burn waste inthe open. It asked if action had been takenagainst builders who flouted rules. It askedhow the government was collaborating withofficials in Punjab to stop burning of cropstalks. The government had no answers.“Mere investigation on papers won’t work. Ifofficials don’t act on this, we will deduct theirsalary and, if needed, send them to jail,” theNGT warned.


POLLUTION

Anil Shakya


Earlier this year, the Delhi gov-ernment attempted to cut downpollution by restricting vehicles bycoming out with the odd-evenrule. But the level of particulatematter was still very high, clearlyindicating that vehicles are not theonly problem.

A report by IIT Kanpur hadidentified dust and exhaust fromtrucks as the chief culprit and notvehicles. PM 10 emission fromdust is 79,626 kg and from PM 2.5,it is 2,165 kg every day, accordingto the report. The capital’s level of respirable suspended particu-late matter is twice that of Beijing,one of the most polluted cities inthe world. In fact, WHO rankedDelhi as the world’s most pollutedbig city.

Anil Shakya Anil Shakya

UNI

POLLUTION


Vasundhara Tewari Broota and Orsvs Ministry of Health and FamilyWelfare and Ors, a case mentioned

before the chief justice’s court onNovember 7, has petitioners rangingfrom artists like Jatin Das, Ram Rehmanand Manisha Gera Baswani to thosefrom the corporate world such as aPartner of Price WaterhouseCoopers.And representing signatory children whowere co-petitioners were three studentsof Class XII—Tarini Sharma, AditBharadwaj and Vasavi Broota—who hadconducted a signature campaign in theirschools against firecrackers.

A list of suggestions in this petitionwas submitted to the Supreme Court onNovember 7. Some of the suggestionswere:

� Identification of major causes of airpollution not sufficiently controlled andregulated so far, viz: emissions from (a)vehicles, (b) construction (c) crop burn-ing; (d) small trade activities; (e) burstingof fireworks and firecrackers; (f) utiliza-tion of polluting equipment and gadgetslike power generators, cutting machinery,toxic materials and paints, etc� Setting up a technical committee andsub-committees on each major source ofpollution which shall consist ONLY oftechnical members with secretarial assistance� Technical and scientific solutions toprevent and/or reduce the release or

emission of pollutants from thesesources� Appropriate amendments to existinglaws, and formulating policies on two lev-els, viz: (a) at the level of prohibitingand/or prescribing means of utilization ofpolluting equipment, and (b) incentivizingthe use of non-polluting equipment bygranting tax benefits for its manufacture,and tax benefits for utilizing non-pollutingequipment� Controlled displays of fireworks, andphasing out of sale of fireworks to thegeneral public

In other countries, various solutionshave been successfully tried to curb airpollution. Germany, which has facedsevere air pollution, tried to phase outnuclear power plants after the Fukishimanuclear plant disaster in 2011. This led to

Remedies andsolutions


There is reason to worry. The number ofvehicles in Delhi has tripled in the last decade.Anumita Roychowdhury, executive director,Centre for Science and Environment, whocalled Delhi a gas chamber, said that there hasto be a restraint on the number of vehicles astoxic emissions from them was impactinghealth.

Knee-jerk reactions like spraying wateron roads to stop dust from flyingaround are hardly the solution. As it

is, there is a water crisis and it is a resourcethat should not be wasted like this. Mounds ofdust on both sides of the road have to be col-lected and disposed off. Most of the time, it istaken off the road and deposited on thedivider from where it again lands on the road.Dust is one of the major contributors to pollu-tion and aggravates ailments like asthma.

The Energy and Resources Institute(TERI) estimates that 35 percent of Delhi’spollution comes from vehicles, constructiondust and burning of refuse. In NCR, 25 per-cent comes from burning of domestic bio-mass, industries, transport and diesel genera-tors. In regions beyond NCR, 40 percent ofpollution comes from crop residue burning,domestic biomass burning and industries.

The government should worry as it is not

just the health of its citizens that is in jeop-ardy. High levels of pollution will also damagethe economy. A survey by the AssociatedChambers of Commerce and Industry of India(ASSOCHAM) said that 5-10 percent of thecapital’s workforce had called in sick due torespiratory problems. It said that air pollutionwas preventing workers from doing their jobsefficiently. Tourism could be impacted, itwarned. “Air pollution-related issues mighthurt brand India,” said ASSOCHAM directorgeneral DS Rawat.

One solution for this sorry state of affairs isto heavily fine polluters. Roads should becleaned daily. Delhi may be one of the biggestcities in India, but only two vehicles with vac-uum cleaners work! This was one of the factsrevealed in court. Waste burning must also beheavily penalized and modern waste manage-ment practices should be put into place. Ifpublic transport does not improve, people willbuy more cars.

Air quality expert Sumit Sharma, a Fellowat TERI, told India Legal: “One governmentalone cannot solve the problem. We needpowerful action-oriented committees that cantake multi-sectoral measures to cut downemissions. We need stringent emission stan-dards. By 2020, India will move to BharatStage 6 emission level norms which will

an increase in coal fired utilities.According to reports, the GermanRenewable Energy Act which includes“feed in” tariffs for clean technology hasbeen quite successful in improving airpollution in Germany. “Feed in” tariffs arean incentive to producers of renewableenergy which are slightly above the costof wholesale electricity rates. Perhapsthat is one model India could follow.

In China, according to BBC, an hour-by-hour data analysis of air quality in 190cities by Greenpeace showed that only15 percent of them had seen anincrease of their readings; the rest ofthem were more or less improved. Asthe largest component of air pollutionemanates from coal-fired electricityplants, efforts to replace them withrenewable sources of energy are appar-

ently now bearing fruit.Japan’s cities are now considered

the least polluted. However, 50 yearsago, the situation was completely differ-ent, and emissions of nitrogen dioxide,carbon monoxide and sulfur dioxidetripled during the 1960s. Japan becameknown for pollution-related illnesses.Stringent laws enacted in 1970, strictenforcement, and alternate powersources such as using hydrogen andsolar have been responsible for thechange.

However, India’s laws appear to beeffective only on paper. The problem in India is due to the lack of publicenthusiasm and governmental will totake ownership of the problem andimplement laws.

—Nayantara Roy

About 300 millionchildren world-wide are inhalingtoxic air that canseriously hampertheir developingbrains. Apart from damagingchildren’s lungs,pollutants cancross the blood-brain barrier andpermanentlydamage their

developing brainsand their future.”

—Anthony Lake, executive director,

UNICEF


require state-of-the-art technology tobe fitted into vehicles. Old vehiclesshould be strictly inspected withnewer technologies so that even pol-lution control checks cannot bemanipulated.”

For older vehicles, the governmentmust adopt a fleet modernizationprogram where it gives scrap value.This will encourage people to buy newvehicles that have better standards. ATERI University study showed thatpeople are ready to move to publictransport provided there is a safe andreliable mode available. Also, naturalgas can be provided to industries thatare using coal.

Thanks to sensitive environ-mentalists, a lot of damage hasbeen prevented as they used

the law to stop the senseless destruc-tion and plunder that human greedwas driving. Activists remember therole of Justice Kuldeep Singh whowas popularly referred to as the GreenJudge. Advocate MC Mehta has forthe last two decades tirelessly foughtcases to ensure that our environmentis protected and the marauders do notget away.

Chennai-based CPR Environ-mental Education Centre points out: “Thejudiciary has played a predominant role inensuring that environmental practices are notjust restricted to the law in paper, and haveenforced and declared some major decisionsthat have come a long way in saving the envi-ronment. Though there are allegations thatdespite landmark judicial pronouncements,the executive and lack of will to save the envi-ronment has dampened the spirits of the judi-cial activism, it must be acknowledged thatthey have also been phenomenal in changingthe course of environment destruction. Theestablishment of National Green Tribunals in2010 and their active take on environmentalissues have also added to such judicial gusto.”

Cleaning up requires political will. Thereare so many examples all over the world tolearn from. In 1957, the Thames was declaredbiologically dead by the Natural History

POLLUTION

Justice Swatanter Kumar,chairperson of the NationalGreen Tribunal

He came down heavily onthe Delhi government andneighboring states for theirinaction, asking: “Whatsteps have you taken onthe ground other thanholding emergency meet-ings? Show us one thingon the ground that isbeing done and that hasbeen effective?”

Dr Vikram Sarbhai, seniorconsultant, chest, criticalcare and sleep medicine,National Heart Institute

He says there has been asystematic failure in townplanning and regulationas even voters did not seeit as an issue. Once thesmog clears, it will bebusiness as usual. Also,Installing air-purifiers is astupid move as we are trying to purify infinity.

Prakash Javdekar, formerenvironment minister

He had issued 37 specificsteps to tackle pollutionafter a meeting of environment ministers in2015. He had askedstates to ban stubble and waste burning, doeffective dust manage-ment and phase out old vehicles. But none of these steps was implemented.

UNI

IL


Museum. That was 60 years ago. Today, it isteeming with some of the world’s most variedaquatic life such as seals, porpoises, sea hors-es, otters and stray whales.

Old Victorian sewers that ensured that theriver was clean were destroyed by bombingsduring World War I. Post-war Britain did nothave the resources to fix it. But Thames was alifeline which needed to be saved. The sewagesystem was gradually improved after the war.A charity was formed in the late seventies thatwas dedicated to improve London’s water-ways. Strict regulations were imposed againstthe use of pesticides and fertilizers. New treat-ment plants were built. Laws were createdagainst the dumping of untreated sewage inThames. Embankments were built in 1891narrowing the river and increasing the waterflow, enabling it to more effectively removewaste. Can we do the same for the Yamuna?So much money has gone down the drain incleaning it, but it remains as dirty as ever.

Even Mexico came out with measures totackle pollution. In the eighties, this country

was one of the most polluted cities in theworld. In 1986, Mexico drew up 21 measuresto beat pollution. Natural gas began to replacefuel oil in industry and thermoelectric powergeneration. In 1988, Mexico brought in a lawthat made federal authorities ensure emissionreduction programs in areas under their juris-diction. In 1989, city and regional govern-ments restricted a fifth of all vehicles by rotat-ing the days when they could ply dependingon the last number on the registration plate.In 1990, verifying vehicles for pollution wasmade obligatory, supply of unleaded petrolwas started and stricter vehicle emissionsstandards were imposed by introducing.

In 2001 and 2011, Mexico City’s fleet oftaxis and minibuses was renovated, a Metrobus network was created and the Metro wasfurther expanded. This systematic plan wasput in place bit by bit.

India too needs a systematic plan that can be executed in the next 20-25 years. After all, cleaning up takes time and strategicplanning.

Anil Shakya


THOUGH India has improvedits ranking in the World BankEase of Doing Business 2017report to 130 among 189 co-untries, the quality of arbitra-tion, important for any busi-ness, leaves a lot to be de-

sired. This could see India lagging behindother countries in attracting business.

Arbitration is one of the most effectivemethods of solving commercial disputes andcan help us achieve equitable solutions qui-ckly and at a lesser cost. Both Prime MinisterNarendra Modi and Chief Justice of India TSThakur have said that arbitration should bepromoted to resolve commercial disputes in-stead of regular court proceedings. They

wanted these cases to be handed over to pro-fessionally-trained arbitrators to make theprocess time-bound and cost-effective. Also,foreign companies which sign business con-tracts with Indian companies prefer an in-ternational arbitral institution for resolvingall disputes.

At a recent conference on arbitration,Modi said that businesses would seek assur-ances that commercial disputes would be re-solved efficiently. He emphasized the needfor a robust legal framework backed by avibrant arbitration culture.

Justice Thakur pointed out that there wasan “ever-increasing avalanche” of cases andthus, this alternative method of dispute res-olution needs to be pushed. He lamentedthat in India, 18,000 judges have to hear fivecrore cases every year. “Out of the 50 millioncases, 20 million are disposed of every yearbut this ever-increasing avalanche of casesfiled in courts is putting the judicial systemunder stress. So we have to look at some al-ternative to the conventional method of dis-pute resolution,” he stressed.

He added that courts need to be sensi-tized about arbitration awards and judges

Arbitration: Easy Come,

Easy GoThough this is one of the most effective

methods of solving commercial disputes, its potential has not yet

been fully utilized in IndiaBy Karan Kaushik and Usha Rani Das

LEGAL EYE


not only need to be trained but also to re-look the statutory provisions. “The need tostrengthen the judicial system is intrinsicallyand deeply connected with our zeal to attractforeign direct investment,” he asserted.

Some of the challenges that India facestoday includes availability of excellent andglobally-recognized arbitrators, observanceof professional conduct and timely comple-tion of proceedings and cost-effective arbi-tration proceedings.

There are various ways that courts inIndia encourage arbitration. These include:Stop a case from being carried on in breachof an arbitration agreement, enforce awardsmade in international arbitrations takingplace in India and issue processes to compelwitnesses to attend arbitral proceedings.

In order to smoothen the process of arbi-tration, lacunae in the Arbitration and Con-ciliation (Amendment) Act, 2015 (which isan amended version of the Arbitration andConciliation Act, 1996) will have to be add-ressed. Though this Act was enacted with theintention of providing speedy and effectiveresolution of disputes through arbitration,undesirable interpretations of the law, slow

disposal of court disputes and inadequate in-frastructure to facilitate speedy disposalhave made foreign investors wary.

Vivek Sharma, partner at Bharucha &Partners, told India Legal: “The prospectiveapplicability of the amendments (Section 26of the Amendment Act indicates that the

“Out of the 50 mn cases, 20 mn are disposed of everyyear but this ever-increasing avalanche of cases filedin courts is putting the judicial system under stress.So we have to look at some alternative….”

—Justice TS Thakur, chief justice of India

PIB

UNI

UNI

MAKING A POINT(Far left) PM Modiaddressing an arbitration conference in Delhi

(Left) Modi at thelaunch of a “Makein India” inMumbai. Hassle-free resolution of commercial disputes in India is vital for the economy


amendments will not apply to arbitral pro-ceedings which commenced before theAmendment Act) has resulted in a dichoto-mous situation where the old and newregime continue to apply in parallel.”

In addition, the Calcutta and the MadrasHigh Courts have given conflicting judg-ments which have created confusion in theminds of litigants and lawyers as to whichlaw would apply to court proceedings.Lomesh K Nidumuri, lawyer with Indus Lawand an arbitrator, said: “The legislature ou-ght to have ensured that there was clarity indrafting to ensure that no such confusion iscreated, particularly when similar issues aro-se when the 1996 Act (repealing the 1940Act) was enacted.”

So what are the major lapses?�There appear to be different standards forexamination of an arbitration agreementunder Sections 8 and 11, which ought to havebeen avoided. The standards consistent withthe proposals made in the Law Commission

Report ought to have been made uniformlyapplicable to both provisions. �The proposed timeline of 12 months to passthe arbitral award is very ambitious even byinternational standards. The resolution ofsome complex disputes may not be possiblewithin this time-frame. Some arbitratorseven refuse to take up a case when they arenot sure if they can resolve the dispute with-in the strict timeframe. Nidumuri said:“Providing ambitious timelines may actuallybackfire and go contrary to the very purposeof introducing these amendments.”�While a time limit has been fixed for chal-lenge to a domestic arbitral award (90 days),no such limit is prescribed for the enforce-ment of foreign arbitral awards despite therecommendations in the Law CommissionReport. This does not make India “arbitra-tion-friendly”.�The Amendment Act also does not clarify ifIndian parties can choose foreign law toresolve disputes through arbitration. Someargue that this is possible as the choice of theparty to determine the choice of law must berecognized. The more conservative argu-ment has been that Indian parties cannotagree to resolve disputes choosing a foreignlaw, as that would mean contracting out ofIndian law, and therefore opposed to publicpolicy. The Bombay and Madhya PradeshHigh Courts have taken contradictory standsand the matter ought to be decided by theSupreme Court.�The Law Commission Report had recom-mended the addition of “emergency arbitra-tor” to the definition of “arbitral tribunal”under Section 2(d) of the Arbitration Act.But this has not been accepted. This couldimpact arbitrations in India. �The Amendment Act does not address theissue of confidentiality in arbitrations.�While the Law Commission Report hadrecommended changes to Section 16 of theArbitration Act to empower the arbitral tri-bunal to decide disputes of fraud and cor-ruption, there are conflicting judgments ofthe Supreme Court on whether questions offraud can be decided by it.�Very few states have enacted the model feesfor ad-hoc arbitration, leaving arbitratorsfixing the fees as per their convenience.

The challenges that India faces includeavailability of excellent arbitrators,

observance of professional conduct andtimely completion of proceedings.

LEGAL EYE

RIGHT PLATFORM(Above) PM Modi

greeting delegates atthe arbitration

conference which wasattended by legal

luminaries fromaround the world

PIB

IL

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IN India, succession to property isgoverned for the most part by thepersonal laws of different religions.Hindu laws of succession have beenimproved and upgraded over the

years with the idea of bringing women at parwith men in terms of inheritance. However,succession is governed by state laws whichare not based on religion and apply equally toall persons. Succession to agricultural landhas been viewed mostly from the perspectiveof the need to move away from the zamindarisystem and give land to the tiller of the soil.

But in many states women have beenspecifically kept out of the line of successionon the excuse that it would lead to fragmen-tation of landholdings.

STATE LAWS PREVAILThe 2011 Census reports: “For the first timesince Independence, the absolute increase inpopulation is more in urban areas than inrural areas.” With a large number of menmigrating to cities in search of jobs and farm-ing being handled by women, former IASofficer and former Member National Advi-sory Council, NC Saxena says in the maga-zine CFO Connect that the time is now ripe

FOCUS

Succession laws discriminate againstwomen when it comes to inheriting

agricultural land while it has brought themon par with men when it comes to family

property. This bias needs to be corrected By Nayantara Roy

This Land’s Not Your Land

for women farmers to own the land theyfarm. According to him, the position of wo-men regarding inheritance of agriculturalland is roughly the following: In Haryana,Himachal Pradesh, Jammu and Kashmir andPunjab, daughters and sisters do not inheritagricultural land at all. Widows and mothershave been given some rights but the rights ofmale relations through the male line get aclear preference in the order of succession.

Saxena says that in Telangana on theother hand, there is a specific provision thatthe Hindu Succession Act (HSA) will applyto Hindus for all properties. In states like Ra-jasthan and Madhya Pradesh personal lawsapply to agricultural land also, althoughwhat appears on the books is not always inconsonance with what happens on the gro-und. Saxena also presumes that personallaws apply in Gujarat, West Bengal, Karna-taka, Kerala, Andhra and Tamil Nadu astheir laws pertaining to agricultural land do


not set out an order of inheritance. The situ-ation in Bihar and Orissa is similar except forthe clause that occupancy rights are subjectto, “any custom to the contrary”. This excep-tion would allow, what Saxena calls “gender-inegalitarian” customs, to prevail whereverthey existed before.

Delhi has given widows inheritance rightsfor agricultural land, but not daughters. InUttar Pradesh, daughters and sisters doinherit agricultural land, but they are low inthe order of succession. The new UPRevenue Code, 2006 which came into forcein 2015 has made many welcome changes torevenue laws in the state including consoli-dating the law by repealing 32 Acts. But forsuccession to agricultural land, in caseswhere there is no will, married daughtersonly inherit if there are no widows, male lin-eal descendants, the mother and father of thedeceased or an unmarried daughter. Section107 of this Act allows the owner to dispose

Deprivingwomen frominheriting agricultural landwas sought tobe justified withthe excuse that itwas in order to prevent fragmentation ofland holdings.

ALL WORK, NO LAND(Left and below) Women are encouraged to labor butwhen it comes to owningfarmland, they are discriminated


UNI

Anil Shakya

agricultural property by making a will sotechnically they have the option of willing itto anybody they want to, ignoring the restric-tions of intestate succession. How manyknow of this provision, or use it to benefittheir daughters remains to be seen.

FLAWED REFORMSThe Hindu Succession Act, 1956 brought inreforms enabling Hindu women to succeedto intestate immovable property. But Section4(2) kept agricultural land out of the purviewof the Act. This Section was repealed by the2005 amendments made to the Hindu Suc-cession Act. Repealing section 4(2) of theHSA should have led to changes in laws relat-ing to equal rights in succession to agricul-tural land, at least for Hindu women. Thepresumption is that now Hindu women atleast, inherit agricultural land in the samemanner in which they inherit other property,equally with their brothers.

The NGO, Lawyers Collective, in its Wo-men’s Rights Initiative report for the UnitedNations Development Fund for Women(UNIFEM) says that it would have beenhelpful if when repealing Section4(2) the Acthad also expressly stated that the HSA app-lies to agricultural land over and above state

laws. The report says that the amendmentappears to have created a distinction bet-ween the rights of Hindu women and therights of non-Hindu women on account ofthe fact that state agricultural land laws app-ly to all persons regardless of religion. There-fore, the rights of non-Hindus remain un-changed. Nevertheless, the improved pos-ition of Hindu women at least was lauded bythe report as, “the amendment of 2005 bro-ught all agricultural land at par with otherproperty and made Hindu women’s inheri-tance rights in land legally equal to men’sacross the states, overriding any inconsistentstate laws”.

However, a 2014 judgment of the Alla-habad High Court has put a spanner in theworks. In Archna vs Deputy Director ofConsolidation Amroha and Ors, a judgmentby Justice Ram Surat Ram held that the pro-visions of the Hindu Succession Act are notapplicable to agricultural land in Uttar Pra-desh. The court held that “agricultural land isin exclusive domain of State Legislature andParliament has no power to enact any law inthis respect. Section4(2) was only by way ofclarification. On its basis, it cannot be saidthat after its deletion, Hindu Succession Act,1956 suo moto applies to agricultural land”.

MANY A SLIPA woman worker takesa break outside Ajmer.In Rajasthan, the laws

are only on paper

“Women withoutindependent

resources are highlyvulnerable to poverty and

destitution in caseof desertion,

divorce, or widowhood. In parts

of western andnorthwestern India,

not uncommonly,rural women evenfrom rich families,

deprived of theirproperty shareswhen widowed,

work as agriculturallaborers.”

—NC Saxena, ex-Member, National

Advisory Council


FOCUS

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This judgment directly affects Hinduwomen, by taking away the rights that the re-moval of Section 4(2) of the HSA gave them.Legislations like the UP Act also affect wo-men from other religions. Even though theirpersonal laws may permit them to get ashare, legislations such as the UP Act, pre-vent the devolution of agricultural propertyin terms of personal law. These Acts imposedifferent rules for succession, effectivelydepriving some women from inheriting agri-cultural property.

DEPRIVING WOMENIn a blog for the Council on Foreign Re-lations, Asok Sircar, who works with theNGO Landesa says: “That women do notinherit land impacts India’s ability to climbout of poverty. First, it is clear that womenlack access to the tools (credit) and programs(agricultural extension services) they need toclimb out of poverty. Second, as a wealth ofresearch indicates, when women have con-trol over land, they direct more of theirincome than do men toward their children’seducation and nutrition. This means thatmost rural women across India inherit pover-ty not property generation after generation.As a result, India is missing an opportunity.”

Depriving women from inheriting agri-cultural land was sought to be justified withthe excuse that it was in order to preventfragmentation of land holdings. The logic forthis unequal treatment was based on the argument that after marriage, womendeparted from the folds of their natal fami-lies, either physically or socially, and permit-ting them succession rights would lead to herhusband’s family gaining the land. Of course,the entire logic is predicated on the assump-tion that a woman is incapable of taking in-dependent decisions.

Fragmentation of landholdings is uneco-nomical. Therefore, many states have landconsolidation laws. These laws were enactedeven in states where women did not inheritagricultural property such as Punjab. In fact,if land is to be consolidated one would thinkthat a family might prefer to have a sister or daughter as their neighbor, rather than a stranger!

To prevent fragmentation one suggested

solution is that while women should be givenequal inheritance rights it could come with a“first option” clause. This would mean, forexample, that if a daughter was planning tosell agricultural land inherited from herfather she would have to first offer it to herbrother or other heirs of her father. A mech-anism would have to be put in to ensure thatshe gets a fair price and that this clause doesnot become a method of depriving her of her rights.

Another mechanism may need to be putin to ensure that effective control over landinherited by a woman vests with her and theland does not add to the items of economiccontrol over her by her brother, husband orin-laws. This may even help cut down onfragmentation as such siblings may beencouraged to work in cooperation with eachother, consolidating the holdings.

Clearly, depriving women of agriculturalproperty rights is not the answer to prevent-ing fragmentation. As Saxena says: “Womenwithout independent resources are highlyvulnerable to poverty and destitution in caseof desertion, divorce, or widowhood. In partsof western and northwestern India, notuncommonly, rural women even from richfamilies, deprived of their property shareswhen widowed, can be found working asagricultural laborers on the farms of theirwell-off brothers or brothers-in-law. Amongthem, the fate of deserted and divorcedwomen is far worse….. Tenure security, andespecially titles, can empower women toassert themselves better with agencies thatprovide inputs and extension services.”

He also says that women tend to spend onbasic household needs, unlike items on men’sshopping list like alcohol or tobacco!

Article 14 of the Constitution guaranteesequality to all. Article 15 promises womenfreedom from discrimination. Excluding wo-men from inheriting agricultural land doesnot serve any useful purpose, but seems onlyto increase poverty and destitution in manycases. As former UN Secretary-General KofiAnnan put it: “Gender equality is more thana goal in itself. It is a precondition for meet-ing the challenge of reducing poverty, pro-moting sustainable development and build-ing good governance.” IL

“Gender equality ismore than a goal in itself. It is a precondition for meeting the challengeof reducing poverty,promoting sustainable development andbuilding good governance.”

—Kofi Annan, ex-UNSecretary-General



PROBE

HARD-HITTING strictures bythe Bombay High Court again-st Pune Police for the slow paceof investigations into thealleged forgery of Osho’s will

have now revived hopes of justice for thou-sands of his followers.

A series of orders were passed by JusticesNaresh Patil and Prakash Naik of theBombay High Court from August to October2016, directing the Pune Police, ReserveBank of India (RBI) and EnforcementDirectorate (ED) to take specific action oncomplaints of fraud, mismanagement and

embezzlement of funds belon-ging to Osho trusts.

The Court was unhappythat the Pune Police hadachieved no progress in theinvestigations into a Decem-ber 2013 complaint thatOsho’s will had been forged. Itdirected the Deputy Commi-ssioner of Police (Crime) tosupervise the investigations. Italso made the ED and the RBIrespondents in the case toexamine whether funds be-longing to Osho’s trusts inIndia were being illegallysiphoned out of the country.Both the ED and the RBIinformed the Court on Octo-ber 7 that they had begun in-vestigations into the matter.

FORGED WILLEver since the death of the

spiritual mystic Osho, also known as“Bhagwan Shree Rajneesh” on January 19,1990, his erstwhile commune in Pune hadbeen mired in a number of controversies.The most sensational of these relate to the“Last Will and Testament of Osho” whichsurfaced in a Spanish court, 23 years afterhis death. One group of Osho’s followers sub-jected a copy of this will to independentforensic examination and then alleged that itwas a forged document. (See India Legal’sMarch 31, 2014, story, “Osho’s Will”.)

The High Court action was with regard toa June 20, 2016, criminal petition filed by

Racket over Osho’s WealthThe Bombay High Court has pulled up Pune Police for tardy progressinto complaints of fraud, mismanagement and embezzlement of fundsbelonging to Osho trustsBy Abhay Vaidya in Pune

SPIRITUAL WHIRLA meditation

session taking place in Osho ashram

in Koregaon

IL


Osho disciple Yogesh Thakkar (SwamiPremgeet), managing trustee of the charita-ble trust, Osho Friends Foundation.Thakkar, in his petition against the State ofMaharashtra and others, complained thatfor more than two years, the Koregaon ParkPolice Station had failed to make any sub-stantial progress with regard to his FIR No.149/13 dated 8.12.13 relating to the allegedlyforged will of Osho and alleged financialirregularities in Osho trusts. Given thelethargy of the Pune Police, he urged theBombay High Court to transfer the case tothe CBI and also direct the Pune Police to filean action taken report.

Thakkar accused five Osho trustees—Swami Anand Jayesh (Michael O’Byrne),Swami Prem Amrito (Dr John Andrews),Mukesh Kantilal Sarda, Klaus Steeg (Sw.Pramod) and Osho’s personal attorney from1982 to 1990, Philip Toelkes (Prem Niren)—of “siphoning off properties and income ofroyalties worth millions of US dollars”belonging to Osho’s charitable trusts inIndia—Neo Sannyas Foundation and OshoInternational Foundation. They were alsoaccused of conspiring to create a fake will ofOsho “as an afterthought” to bolster theirclaims to Osho’s intellectual properties.

Thakkar, a long-standing Osho discipleand a property agent based in Pune, alongwith his fellow disciple, Kishor Raval(Swami Prem Anadi) have been waging aprotracted legal battle in courts and theCharity Commissionerate to demand trans-parency and accountability in the function-ing of Osho’s trusts.

SPANISH COURTSoon after Osho’s death, the Osho Communehad officially stated that he did not leavebehind a will. However, a true copy of Osho’s will dated October 15, 1989, suddenlysurfaced in June, 2013, in an “Osho” trade-mark case being contested in a Spanishcourt. This is the Trademark and DesignRegistration Office of the European Union atAlicante, Spain.

In that will, Osho bequeathed all hisintellectual properties to a Swiss charitabletrust, the Neo Sannyas InternationalFoundation. These assets include copyrights

to 9,000 hours of audio discourses in Hindiand English, 1,870 hours of video discourses,650 titles of transcribed books in Hindi,English and more than 60 languages aroundthe world and 850 paintings.

The Court expressed disappointmentwith the police reply which stated that a copyof the will had been sent to handwritingexperts in 2014 for verification and thereport was awaited. To this, Justice Patilasked incredulously: “You have not receivedthe report and have not done anything aboutit?” Subsequently, the Court observed thatAssistant Public Prosecutor Sangeeta DShinde submitted the government hand-writing expert’s report which had beenperused by the Court.

The Court directed that the original willbe traced for the purpose of investigation.Accordingly, the Maharashtra governmentwrote to the Union Home Ministry for per-mission to issue a Letter Rogatory to theSpanish court to obtain the original will.

These developments in the Bombay HighCourt have once again thrown the spotlighton Osho’s death and other controversies. Themystic’s followers are now eagerly lookingforward to progress in the case and are hope-ful that justice will be served, the guilty pun-ished and accountability and transparencyrestored in the affairs of Osho’s trusts.

GUTSY FIGHT(L-R) Yogesh Thakkarand Kishore Raval have been waging a prolonged legal battledemanding transparencyand accountability in the functioning of Osho’s trusts

Osho discipleYogesh Thakkaraccused fiveOsho trustees of“siphoning offproperties andincome of royalties worthmillions of US dollars” belonging to Osho’s charitable trustsin India. Theywere alsoaccused of conspiring tocreate a fake willof Osho.

What is your take on the recent surgicalstrikes by India in Pakistan?After 1,000 years, the citizens of Indiafelt yes, we can defend ourselves. Asense of confidence has come in them.The surgical strikes have no militarysignificance. It is a psychological advan-tage. Pakistan attacked those (soldiers)who are a part of India—it affectedcommon Indians. As far as the elitistclass is concerned, they are obviouslynot affected by it.

How do you see the Kashmir issue andwhat in your view is the solution? What is this Kashmir issue? Kashmir isa part of India. China and Pakistan haveinvaded parts of it. From the first dayitself, India should have said no andfought Pakistan. It should have stoppedwater to Pakistan—cut all water ties. Letthem go and take water from SaudiArabia! You don’t have to fight a war.

See, they took away your Lahore,Taxila, Mohenjo Daro. You kept on giv-ing and they kept on taking. You shouldstop it. Let them suffer the conse-

quences. India's arms were cut off when Pakistan separated itself and was created.

Wouldn’t all this be seen as inhuman? Well, the enemy says it won’t stop tillevery Indian becomes a Muslim. Whatthey forget is that they (Muslims) tooare the inheritors of Indian civilization.Muslims will remain Indians too. As Isaid earlier, India’s arms were cut offwhen Pakistan separated itself fromIndia and became a separate entity.India should realize what it has lost.Stop all trade ties. Neither should anyactor from there (Pakistan) come herenor should any actor from here go there.

But there should not be any ban on artand culture. How can we restrain creative minds?Where are the creative minds and thepoets in Pakistan? They are alreadydead. You have put a fatwa on songs,singers and the sitar. When they put aban on the Sindhi language, not a singleHindustani protested. They did not

bother. This is your karma.

When we talk about Kashmir, we mustalso talk about Balochistan. It is noteasy for India to support their cause… Balochistan was an independent statethat Pakistan occupied by force. Whenthey came for help, you refused. Nowsee what is happening to Kashmir…

What in your opinion is the problemwith Indian Muslims?Indian Muslims should first be Indianand then Muslims. If you reverse this, itbecomes Pakistan. How can you acceptBabar as the badshah of Hindustan? Hecame, attacked, tortured, built mosquesand when he was about to die, he said

FACE-TO-FACE

Pakistan-born Canadian writer and broadcasterTAREK FATAH is widely acclaimed as well as criti-cized for his strong anti-Pakistan views. He has openlyopposed the Sharia law and advocates a liberal, pro-gressive form of Islam. Fatah strongly believes Pakistanis a lie and openly articulates this. In an exclusive inter-view with RAJSHRI RAI, he shares some of his radicalthoughts on Pakistan and Indian Muslims. Excerpts:


“Cut All Water Ties with Pakistan”

29INDIA LEGAL October 31, 2016

he did not want to die in Hindustan asthere are ugly people here and so hewent back to Uzbekistan and died there.Textbooks should project him as aninvader and not a hero.

Do you support the Babri Masjid demolition?Babri Masjid was built by Babar bydemolishing a Ram temple. Aya, loota,barbad kiya aur chala gaya. (He came,he looted and went away). Of course,the demolition is wrong as one should

understand that those who demolishedare our enemies. When we achieve truthand reconciliation, we do not demolishmosques or temples.

Aren’t you afraid of the threats youconstantly receive?They threaten you. They socially ostra-cize you. But they are the cowards.

When in the Indo-Pak conflict did it feelthat the situation could be resolvedpeacefully?

The birth of Pakistan is a lie. There isno honesty, truth and kindness in theblood of Pakistanis. Tell me oneinstance when the Pakistan governmentor the military told the truth! They havemassacred since the day the country wasborn; first the supporters of BachaKhan, then Kashmir.

It is said there are many Indians whosupport Pakistan. How does one dealwith this?It does not pose a danger to anyone.

Anil S

hakya

Indian Muslims do not supportPakistan as such. But on the other hand,they want a Muslim family law. Theproblem is that Indian Muslims lackleadership. When the Muslim personallaw board was introduced during IndiraGandhi’s rule, you kept only Maulvisthere. But Muslim women are nowdemanding that the unfair law be abol-ished. Maulvis, on the other hand, wantthe Sharia law.

What are your views on triple talaq?It is a crime. The Quran says to alwaystell the truth even if the truth goesagainst you. Maulvis have an option,either Allah’s Islam or Mullah’s Islam. Ifyou follow the former, you will become agreat person and attain peace, while thelatter will lead to violence and blood-shed. The clergy is full of hypocrites.They have a problem if their daughtersare divorced through talaq, but if others’daughters get talaq, they are not both-ered. Unfortunately, Indian politiciansare using Islam to garner votes. This isunacceptable. It is the worst form ofidentity politics.

How should Muslims view themselveshere politically?Minority politics is suicidal. Theyshould not treat themselves as an

aggrieved minority. They should comeout of the victim mode. Muslims shouldrecognize their rights. They should notsupport reservation and subsidy. Theyshould get out of the ghetto.

Why are educated people turning radi-cal? Do you support extremism? The more educated a person is, themore radical he becomes. Take forinstance Jinnah—he was rich, educated,consumed alcohol, ate pork and beef.He was a radical. I am not supportingextremists. They are following me.Though I support Modi and denounceMuslims ideologies publicly, I do notsupport Hindu radicals like the BajrangDal or the Shiv Sena. If they rule, Indiawill become a Hindu nationalist nation, which is wrong. India's biggestfriends are two Muslim countries—Bangladesh and Afghanistan. India is one of the most pro-Muslim

countries of the world.

How should India deal with Pakistanamidst all the pressure?Stop their water sources. For a Hindu,going to Lahore should be same asgoing to Mecca is for me.

What is the only way to bring peacebetween Pakistan and India?Jab tak Pakistan hai, shanti nahi rahegi.Jab tak Lahore mein Diwali na manayijaegi, tab tak shanti nahi hai. Lahoremein Diwali nahi toh wo kya Diwalihai! (There will not be any peace tillPakistan exists. Till we are not able tocelebrate Diwali in Lahore, peace in itstrue form won’t be there between thetwo countries. And if there’s no Diwaliin Lahore, then that Diwali has nomeaning in other places!)

What are the most negative aspects of India?The most negative part is the evidentclass division which is ingrained inevery citizen here. The way the richtreat the poor makes my heart cry. Noone sits beside their driver. This typical-ly symbolizes class differences.

Which place in India and which Indianleader do you admire the most? I like Delhi. There is a small Punjab inDelhi which I was not aware of. Amongthe leaders, I like Shashi Tharoor. He iserudite and understands the bigger pic-ture of the world. He might be a littleflamboyant but he knows the world andwhat is happening.

What do you think of Rahul Gandhi andBilawal Bhutto? They should both be sent on a vacation.Rahul and Bilawal are pappu-type peo-ple who have got into politics because oftheir family background. They have nounderstanding of politics though. IL


“The birth of Pakistan is a lie.

There is no honesty, truth and kindness

in the blood ofPakistanis.”

FACE-TO-FACE

SOLEMN FAREWELLSoldiers carry the coffins of those who weremartyred during a militant attack in Uri

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Adding momentum to themounting African opposition

to the Hague-based InternationalCriminal Court (ICC), Burundi andGambia have informed UNSecretary-General Ban Ki-moonof their decision to quit the tribu-nal. Earlier, Namibia and SouthAfrica had done so. Now Kenya’sparliament is also considering fol-lowing suit. African states havelong complained that the ICC is

biased, prosecuting Africanswhile ignoring others. Gambia’sInformation Minister SheriffBojang said on state television:“… despite being called theInternational Criminal Court, it isin fact, an International CaucasianCourt for the persecution andhumiliation of people of color,especially Africans.” Ironically,African countries were among thefirst to embrace the ICC.

Africa loses faith in ICC

INTERNATIONAL BRIEFS

AGerman teen’s parents may face trialfor not paying a truancy fine after

disallowing their son a visit to a mosqueas part of a geography field trip.The fine of 300 euros is a commonpractice in parts of Germany forsuch absences. In a letter to theschool, the father spoke about“religiously-motivated violence con-nected with Islamic people” and hisfear that his son could possibly be“indoctrinated” during the trip. Theletter was published online by hislawyer Alexander Heumann, who isa former member of the far-right

Alternative for Germany Party and wasone of the organizers for “Dügida,” ananti-migrant, anti-Islam movement.

Uber cab service has been accusedof violating employment rights by

two British drivers and the CentralLondon Employment Tribunal has ruledin their favor this month. Now, Uber driv-ers can look forward to receiving holidayand sick pay as per Britain’s nationalminimum wage. This decision mayaffect around 30,000 drivers acrossEngland and Wales. Earlier, in April2016, Uber drivers in California andMassachusetts had also filed a lawsuitagainst the company claiming they hadbeen misclassified as independent con-tractors. But the lawsuit was settledbefore it went to trial when Uber paidUSD 100 million to the drivers.

The century-old traditionof launching small rock-

ets to remember the martyrsof the First World War onArmistice Day might cometo an end due to a new EUhealth and safety law. Thesenoisy rockets will be re-placed by whistles. Underthe new directive, manufac-turers cannot sell themaroon rockets unless theyreceive specialist training.

Critics have hit out at the restrictivelaw. Maroons, which normally cost up to£40, are being moved from the P1 cate-

gory to P2. This certification would costtoo much for the manufacturers, accord-ing to British Pyrotechnists Association.Also, investing in such training mightprove too costly or time-consuming.

Rocket-freeArmistice Day

—Compiled by Shailaja Paramathma

Islamophobia rears its ugly head

UK rules in favor ofUber drivers


GLOBAL TRENDS

EVEN as British PrimeMinister Theresa Maywas preparing for her visitto India, the High Courtof Justice in Londondecided to derail herpromise of leaving the EU

by the end of March. The Court demandedthat the June 23 referendum verdict bepassed through parliament before any primeminister can press the Article 50 button and begin the long-drawn-out process ofleaving the EU.

The verdict was given in a case filed by agroup called People’s Challenge which waslaunched in the wake of the referendum bythose who were unhappy with the Brexitresult. The High Court insisted that the gov-ernment could not use the royal prerogativeand bypass parliament. Gina Miller, an anti-

Leaving the EU seems easiersaid than done for Britain as

the High Court of Justice hasnow demanded that the June 23 referendum be

passed through parliament

By Sajeda Momin in London

Brexiteers Face

BumpyRoad

Brexit campaigner, is leading the move andthe People’s Challenge has already raisedmore than GBP 1,60,000 to fund its legalcosts donated by citizens who would like toremain in the EU.

BYPASSING VOTEIn October, a three-day hearing was held bythe Lord Chief Justice, Lord Thomas alongwith Sir Terence Etherton, the Master of theRolls and Lord Justice Sales. The AttorneyGeneral, Jeremy Wright QC, had accusedMiller of attempting to subvert the demo-cratic will of the British people and called ita “backdoor” effort to bypass the Brexit vote.However, on November 3 when the Courtgave its ruling, the Attorney General did notturn up to hear it, probably knowing that thelaw was not on his side.

The government has said that it will be

UNEASY LIES THEROAD AHEAD

British Prime MinisterTheresa May

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appealing before the Supreme Court, but it isunlikely that the higher court will change theruling. The Court’s decision does not meanthat Brexit will be overturned, but there willdefinitely be a delay in May’s desire to triggerArticle 50 by the end of March 2017. Moreimportantly, parliament will now have a sayin the terms that the government negotiateswith the EU—whether there will be a “hardBrexit” or a “soft Brexit”.

The chances of a snap general electionannounced by the Tory Party are also muchhigher, particularly if the government againloses in the Supreme Court.

As Dominic Grieve, the formerConservative Attorney General pointed out:“The issue in front of the High Court waswhether you could undo statute law by aproclamation, by the use of the royal prerog-ative saying ‘we are leaving the EU’, thereby

depriving large numbers of people in thiscountry of statutory rights enacted by theparliament of the United Kingdom whichthey currently enjoy.” Government lawyershad argued that prerogative powers were alegitimate way to give effect “to the will of thepeople” who voted by a clear majority toleave the EU in the June referendum. Butthe Lord Chief Justice told the government“you can’t do that”. “The government doesnot have power under the crown’s preroga-tive to give notice pursuant to Article 50

Though May was on the Remain side, fromthe time of her campaign for prime minister-ship she has announced that “Brexit meansBrexit” and there would be no going back.

HAILING VERDICTLeave EU supporterscelebrate the result inSunderland after pollingstations closed in theReferendum on theEuropean Union inLondon

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bers of both the House of Commons andHouse of Lords will be given a chance toshape the Brexit process.

The ruling has come as a shot in the armfor MPs across all political hues who havebeen demanding greater parliamentaryscrutiny over Brexit and for May to reveal thebroad principles of her negotiating strategy.During the referendum campaign, theBrexiteers had no strategy about what theywould do if they won—they simply keptharping on taking “sovereignty back”—notexpecting the vote to go in their favor. Thetask of leaving the EU has fallen on May andshe is adamant on doing it her way. “This rul-ing underlines the need for the governmentto bring its negotiating terms to parliamentwithout delay. Labour Party respects thedecision of the British people to leave theEuropean Union. But there must be trans-parency and accountability to parliament onthe terms of Brexit,” said Jeremy Corbyn,leader of the Opposition.

It also gave hope to the Scottish govern-ment of getting a greater say in the movetowards leaving the EU. Scotland had votedoverwhelming to stay in the EU and after theresults were announced, there were strongindications that it may hold a second refer-

WHY EXIT?Demonstrators take part

in a protest aimed atshowing London’s solidarity with theEuropean Union

following the recent EU referendum, in TrafalgarSquare, central London

for the UK to withdraw from the EU,”declared the Lord Chief Justice. It must go through parliament and the govern-ment must bring in a primary legislation to this effect which needs to be passed byboth Houses.

CLOSET BREXITEER Though May was on the Remain side, albeitreluctantly, from the time of her campaignfor prime ministership she has announcedthat “Brexit means Brexit” and there wouldbe no going back on the results. During thelast four months since she assumed premier-ship, she has shown herself to be a closetBrexiteer who favored a “hard Brexit”. Shewas not willing to negotiate with the EU onstaying in the single market, essential for theBritish economy, because she did not want toconcede on the issue of immigration – a bug-bear of hers since she was in the HomeMinistry. May has been refusing to give par-liament a vote on the terms of Brexit becauseonce power shifts from the hands of theexecutive to the legislature, the prime minis-ter would lose control. She was determinedto use the “royal prerogative” for Brexit so asnot to lose control on the negotiations. Butthe Court’s ruling has meant that now mem-

GLOBAL

May has beenrefusing to give

parliament a voteon the terms ofBrexit because

once power shiftsfrom the hands of

the executive tothe legislature, the

prime ministerwould lose

control.


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There is no denying that the majority ofMPs will vote in favor of triggering Article 50because they are keenly aware that their con-stituents have overwhelmingly voted forBrexit, but by putting it through parliament,“democracy will have been asserted”. TheCourt’s decision argues in favor of trans-parency in political decision-making – thebedrock of democracy and good governance.

The chances of Brexit being overturnedare very minimal. It can only happen in thefollowing scenarios:� If parliament votes to insert a second refer-endum clause into the Article 50 Brexit bill � Some economic catastrophe causes achange in public opinion by 2018�A snap poll is won by a party which hasstated both in its campaign and manifestothat it would work to remain in the EU.

These situations are possible, but oneshouldn’t bet on them. While this particularbattle has been won by the Remainers, it ishighly unlikely that they will win the war. IL

Gina Miller, anti-Brexit campaigner

She is leading the move andthe People’s Challenge

group has already raisedmore than GBP 1,60,000 tofund its legal costs donatedby citizens who would like to

remain in the EU.

Nicola Sturgeon, the first ministerof Scotland

She says her administrationwould “actively consider”

whether to formally join thenext legal battle challengingthe UK govt’s position that ithas the right to trigger Article50 based on the referendum.

Jeremy Corbyn, leader of the Opposition

He says the ruling underlinesthe need for the government

to bring its negotiating terms to parliament without

delay. There must be transparency and

accountability.

endum on whether it should stay in the UKor not because Brexit would not be represen-tative of the Scottish peoples’ aspirations.Nicola Sturgeon, the first minister ofScotland, said her administration would“actively consider” whether to formally jointhe next legal battle challenging the UK gov-ernment’s position that it has the right totrigger Article 50 based on the referendumresult alone.

POLITICAL JUDGMENT?The ruling was met with dismay by pro-Brexit MPs, particularly the far right UKIP’sleader Nigel Farage who played a major rolein the Brexit campaign. “I worry that abetrayal may be near at hand,” said Farage inhis usual over-the-top style. Unhappy withthe Court’s ruling, UKIP’s lone member inthe House of Commons, Douglas Carswell,went straight for the jugular by suggesting aneed for reform of judicial appointmentsand calling the judgment “political”.


1. Kiss the rodA: Pick up challengeB: DieC: Accept punishmentD: Get married

2. BBLA: Be Back LaterB: Bye Bye LoveC: Best Buddy & LoverD. Bad Boss Lady

3. Hugger-muggerA: ConfusionB: Petty thiefC: Drug pedlarD: Swindler

4. Amen-snorterA: AtheistB: GluttonC: AsthmaticD: Preacher

5. At a clipA: At peakB: At bottomC: At a timeD: At a disadvantage

6. Out of the arkA: Not on targetB: Old-fashionedC: InsignificantD: Neglected

7. As active as ......A: CatB: AlladinC: Quicksilver

D: Ant

8. ImportunateA: UnluckyB: InsistentC: InsignificantD: Unsuccessful

9. Roger that!A: Remember!B: OK!C: Shoot!D: Do you understand?

10. RueA: RegretB: ColourC: CryD: Anger

11. ExtenuateA: Punish B: LiberateC: ExcludeD: Excuse

12. SuperciliousA: Surplus B: ArrogantC: FakeD: Supernatural

13. CajoleA: Act secretlyB: Abuse physicallyC: Burn to ashesD: Persuade with flattery

14. VenialA: Poisonous

B: PardonableC: GentleD: Agreeable

15. BijouA: TrinketB: FriendC: BusinessD: Boy

16. ProclivityA: Grave errorB: Natural tendencyC: Mental confusionD: Cloudiness

17. VicissitudeA: Change of fortuneB: Healthy attitudeC: ComplicationD: Sharp increase

18. QuellA. FrightenB. CoolC. SuppressD. Melt

19. PrateA: LoveB: CriticiseC: PrickD: Chatter

20. GibeA: StingB: CriticismC: ArrowD: Expression of ridicule

1. Accept punishment2. Be Back Later3. Confusion4. Preacher5. At a time6. Old-fashioned7. Quicksilver8. Insistent 9. OK!10. Regret11. Excuse12. Arrogant13. Persuade with flattery14. Pardonable15. Trinket16. Natural tendency17. Change of fortune18. Suppress19. Chatter20. Expression of ridicule

SCORES

0 to 7 correct—Youneed to do this more

often. 8 to 12 correct—Good,

get the Scrabble board out.

Above 12—Bravo! Keep it up!

Have fun with English. Get the right answers. Play better Scrabble.

By Mahesh Trivedi

WORDLY

WISE

[email protected]

ANSWERS


AUSPICIOUS BEGINNINGS: Businessmen purchase ledger books and pray for a prosperous year

IMAGES

FIRST DRAFT: A girlassists in sculptingearthen lamps before Diwali

— Compiled by Kh Manglembi Devi; Photos: UNI

FINAL TOUCH: A girl paints an idol of Lakshmi in eye-catchinggold color

WHEN KALI CALLS: Shyama puja in Bengal coincides withLakshmi puja on Diwali in the rest of India

INCHING CLOSER:Baked diyas get their

coat of paint beforehitting the streets



The Arnab EffectHE’S still around but that

foppish new hairstyle saysthat he’s parting ways with

Times Now. As he told his colleaguesin a farewell speech, the time is now.He also said the game is on, whateverthat means. But what does it meanfor assorted camp followers, fans,permanent studio guests, the BJPand myriad other individuals andinstitutions who will be affected by his departure? Here is the possi-ble fallout.

Retired Generals: Led by the redoubtableMajor General Bakshi (he of thequivering handlebar moustache andwar-like demeanor), Arnab had liter-ally collected a formidable army ofex-servicemen to buttress his favoritepatriotic theme. Now that he’s off toconquer new territory and slay newdragons, they will have to retire hurt.At least it will save Bakshi frombursting any more blood vessels andthe rest can join their fellow retireesat Jantar Mantar.

Divorce Rates: One area where his dailydiatribe created conflict andestrangement was marriages. Manycouples had the wife as an Arnab fanwhile the husband couldn’t bear towatch the 9 O’clock Noise (or viceversa). Not only did this cause adaily battle for control of the remotecontrol, it led to heated argumentsand threats of divorce. Thankfully,marital security shall be restored.

JNU: Students of the prestigious

Central University canbreathe again (if Delhi’s airallows them such indul-gences) now that Arnabwill no longer be targetingthem for being anti-nation-als and a hotbed of crime,terrorism, drugs, free sexand plotting to overthrowthe government. EvenHafeez Saeed’s LeT didn’tattract such venom.Someone at JNU couldwrite a PhD on the subject.

Sacrificial Lambs: What Times Nowproved was that there are any num-ber of people who love being humili-ated and insulted in public, from so-called experts to opposition leadersand most visibly, officials and ex-armymen from Pakistan. The latterone can understand since their com-pensation was in US dollars, but theothers allowed themselves to be tar-geted seemingly in keeping with theoriginal metaphorical reference tosacrificial lambs being sliced anddiced for the common good. Every-thing at Times Now was alwaystouted as being for the commongood (read TRPs).

The Army Chief: General Dalbir SinghSuhag must be mightily relieved. Fora while, it looked like Arnab wasafter his job, inspiring our troops,formulating military strategy, takingon the Pakistan army single-han-dedly and gearing for battle everynight. The other army chief, General

Sharif, must be equally relieved to be spared the prospect of anotherIndo-Pak war.

Language: The English language mayneed a revision since “Arnab” hadbecome a verb, a singular noun, anadjective and a pronoun, not to men-tion phenomenon. His program hadalso become an instrument for meas-uring decibel levels. His next, much-awaited avatar should produce somemore linguistic definitions.

Orphanage: There are plans to set upan orphanage-cum-deaddiction cen-ter for the legion of Arnab fans leftbereft, bewildered and bereavedwithout their 9 O’clock fix. The newcenter will be called SCREAM(Special Center for ResettlingEveryone with Arnab Mania).

ENT Influx: ENT specialists are indirectbeneficiaries with their clinics filledwith those who are hard of hearingand could only watch Times Now.

UdayShankar

SATIRE/ DILIP BOBB

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RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16

News & Politics

India Legal 30 November 2016